- “I did not know what kind of monster we were dealing with”: dramatic testimony from Judge Lackey on Scruggs corruption [Folo; and repercussions too]
- New at Point of Law: Pork-barreling Albany lawmakers shell out for just what NY needs, three more law schools; Sarbanes-Oxley unconstitutional? Ted goes after JAMA on Vioxx; sadly, appeals court overturns Santa Clara opinion that nailed ethical problems with govt.-paid contingency fee; legal aid lawyers, to subprime borrowers’ rescue? and much more;
- Cadbury claim: we own the color purple as it relates to chocolate [Coleman]
- A world gone mad: Innocence Project directors include… Janet Reno? [Bernstein @ Volokh]
- Not unrelatedly: Can a California prosecutor be held liable for wrongful murder conviction of man freed after 24 years? [Van de Kamp versus Goldstein, L.A. Times via Greenfield]
- With all his lawyer chums from Milberg-witness days, you’d think Ben Stein could have saved the makers of his creationist movie from stumbling into textbook IP infringements [Myers, again, WSJ law blog]
- Groggy from dental anesthesia, plus a half a glass to drink: then came the three felony DUI counts [Phoenix New Times, Balko via Reynolds]
- Shell says boaters had years of notice that mandated ethanol in fuel was incompatible with fiberglass marine gas tanks, which hasn’t stopped the filing of a class action [L.A. Times via ABA Journal]
- Terrorism asymmetry: “They say ‘Allahu Akbar!’ we say ‘Imagine the liability!'” [McCarthy/Lopez, NRO]
- Deborah Jeane Palfrey convicted [WaPo; earlier]
- David Neiwert truly born yesterday if he thinks Kevin Phillips is noteworthy for his record of being right [Firedoglake; some correctives]
This is a bit off topic from civil litigation, but Tom Kirkendall, a Houston attorney following the Enron trial, makes the case that the Enron prosecution team or “task force” has been pushing the envelope of prosecution tactics, with disturbing results.
In an unprecedented move, the Task Force has named over 100 co-conspirators in the case. So, the potential definitely exists for substantial testimony about out-of-court statements going to the jury without the defense ever having an opportunity to cross-examine the persons who made the alleged statements. Moreover, fingering unindicted co-conspirators is an equally effective technique for the Task Force to prevent testimony that is favorable to the defense because persons named as unindicted co-conspirators are likely to the assert their Fifth Amendment privilege against self-incrimination and thus, not be defense witnesses during the trial. Thus, the Task Force’s liberal use of the co-conspirator tag has a double-whammy effect — not only does it allow the Task Force to use out-of-court statements against defendants without having the declarant of the statements subjected to cross-examination, it has also effectively prevented previous Enron-related defendants from obtaining crucial exculpatory testimony from alleged co-conspirators who have elected to take the Fifth and declined to testify.
Kirkendall argues that despite these tactics, the task force botched the broadband prosecution, and already seem to be making mistakes in the Lay/Skilling trial. He has a lot of fun, in particular, with the task force’s indictment against Lay and Skilling, which was apparently so poorly written that the prosecution itself has petitioned the court not to let the indictment be referred to in cross examination. (Tom Kirkendall, Houston’s Clear Thinkers, Jan 27)
Almost makes you nostalgic for Marcia Clark. But probably not Janet Reno. Over at CoyoteBlog, I wonder whether NJ prosecutors are more interested in upholding the law or getting front page pub in the NHL betting case.
May 10-12 — Lawyers say taxpayers owe $41 million to smuggled illegals’ survivors. Two Yuma, Ariz. lawyers have filed wrongful death claims with the federal government’s Fish and Wildlife Service demanding $3.75 million each for the families of eleven illegal immigrants who died in May 2001 while being smuggled through a desolate section of the Cabeza Prieta National Wildlife Refuge in southern Arizona near the Mexican border. The suit charges the government with failing to authorize the placement of water stations intended for use by unlawful visitors, though it knew smugglers of immigrants were active in the desert area. “It’s absolutely untrue that anyone ever proposed to put stations where the aliens perished,” said Tom Bauer, spokesman for the Fish and Wildlife Service regional office in Albuquerque. (Hernán Rozemberg, “Families sue U.S. over Mexican migrants who died in desert”, Arizona Republic, May 9; David J. Cieslak, “Families of migrants who died last year file claim against U.S. government”, Tucson Citizen, May 8). Update May 21, 2004: judge allows further time for plaintiffs to prove case. (DURABLE LINK)
May 10-12 — “Judge allows powwow lawsuit”. It’s sensitivity vs. sensitivity: in Minnesota state court a group of female drummers are pursuing a sex discrimination law over their exclusion from the ritual drumming at a Native American powwow held annually at the University of St. Thomas. “Larry Smallwood, part of the Little Otter Singers drum group from the Mille Lacs Indian Reservation in central Minnesota, said women singing around a drum is a ‘cultural no-no.'” However, a judge denied the university’s motion to throw out the case, ruling (among other things) that “the school failed to show that drumming is protected speech under the First Amendment”. (Hannah Allam, St. Paul Pioneer Press, May 7). (DURABLE LINK)
May 10-12 — Updates. More developments in stories familiar to longtime readers:
* In a case arising under San Francisco’s pioneering ordinance banning discrimination on the basis of height and weight, “Jennifer Portnick, a 240-pound San Francisco aerobics instructor rejected by Jazzercise because of her size, has reached an agreement under which the firm will drop its requirement that instructors look fit.” (see Feb. 27) (Elizabeth Fernandez, “Exercising her right to work”, San Francisco Chronicle, May 7).
* Blackford High School in Hartford City, Ind., has relented and is going to allow Rob Mahon to attend its prom after all despite the positive results on his blood test for nicotine (he is 18 and it is legal for him to smoke) (“School Reverses Prom Ban For 18-Year-Old Smoker”, IndyChannel, Apr. 26)(see Apr. 26)(via WhatTheHeck.com)
* In the acrimonious litigation between the members of classical music’s Audubon Quartet (see Nov. 13, 2001 and links from there), “Estranged violinist David Ehrlich, who won a $611,000 judgment against his former quartet colleagues over his sudden dismissal two years ago, has filed motions in court that could force Clyde ‘Tom’ Shaw and his wife, Doris Lederer, to sell their Blacksburg home in order to pay their court-imposed debt.” (Kevin Miller, “Spurned violinist seeks house”, Roanoke Times, May 9; documents, defendant Shaw’s site)(& see letter to editor, Jun. 14, recommending website critical of defendants)(Update Dec. 4, 2005). (DURABLE LINK)
May 9 — The rewards of growing mold together. “Toxic mold” claims are among the fastest-growing source of lawsuits and claims against property insurance companies. Now various government agencies in Texas are investigating suspected unsavory practices in the thriving business that has sprung up of assisting homeowners to file such claims. After first moving the homeowner into a rental, some dishonest adjusters proceed to “put wet towels in the house, spray down the draperies, hose down furniture — anything to increase moisture. They close the windows and crank up the heat. It’s called ‘cooking’ the house, and it’s a recipe for sprouting mold and bilking insurance companies out of thousands of dollars.” The scams sometimes are unbeknownst to homeowners and at other times go on with their collusion. Alan Bligh, president of the Better Business Bureau in the Coastal Bend area of Texas, calls the practice “fairly widespread”, saying there are both legitimate and dishonest firms operating locally within the “mold remediation” business, which has mushroomed in short order from two or three companies to about 100. Insurance companies that delay paying mold claims or subject them to too much scrutiny can face punitive damages from angry jurors. (Laura Elder, “‘Cooked’ houses burn insurers”, Corpus Christi Caller-Times, May 5)(via CALA Houston). See also Mike Vallante, “Calm the mold hysteria”, Houston Chronicle, Apr. 26. (DURABLE LINK)
May 9 — House bill would cut off municipal gun suits. A proposed “Protection of Lawful Commerce in Arms Act” would defend interstate commerce in guns from lawsuits brought on behalf of hostile local jurisdictions. As of mid-April the bill had 215 co-sponsors in the House. “When 219 members co-sponsor it the bill would likely be voted on by the full House. Four more co-sponsors would help bring the battle between the gun banners and the firearms industry to a swift and honorable conclusion.” (Tanya Metaksa, “Stop the War Against the Gun Industry”, FrontPage, Apr. 16; H. Sterling Burnett, National Center for Policy Analysis, “Congress should stop lawsuits against legal firearms, Apr. 18; “House GOP seeks to end handgun suits”, AP/Washington Times, Apr. 19). (DURABLE LINK)
May 9 — “‘Little’ done for firm, Rendell says”. It’s commonplace for politicians on leaving office to step into remunerative partnerships at big law firms, even when (especially when?) those law firms do a lot of business with the public entities associated with the politicians. What has raised eyebrows in the case of former Philadelphia mayor and Pennsylvania gubernatorial candidate Ed Rendell is his superior candor: he freely admits that he has done “very little work” to justify the $250,000 he draws annually from the prominent Philadelphia law firm of Ballard, Spahr, Andrews & Ingersoll. (Tom Infield and Thomas Fitzgerald, Philadelphia Inquirer, Apr. 23). (DURABLE LINK)
May 8 — Zoo asserts animals’ “medical privacy”. The Washington Post had asked to see the medical records of a beloved giraffe after its death, but no go: “The Smithsonian Institution’s National Zoo has taken the position that viewing animal medical records would violate the animal’s right to privacy and be an intrusion into the zookeeper-animal relationship.” On the other hand, the zoo does allow curious visitors to view the matings and other intimate habits of reclusive creatures through its PandaCam, ElephantCam and Naked Mole-Rat Cam. (James V. Grimaldi, “National Zoo Cites Privacy Concerns in Its Refusal to Release Animal’s Medical Records”, Washington Post, May 6). (DURABLE LINK)
May 8 — Mayor Bloomberg goes to bat for liability reform. “Having made little headway so far in his efforts to get the State Legislature to pass the bills he is seeking to limit damages against the city, the mayor has now turned his sights on the City Council. Mr. Bloomberg said that he would submit two bills to the Council tomorrow to make the city less vulnerable to slip-and-fall lawsuits. ‘All too often, people file tort claims for the same reason they file lottery tickets,’ he complained at a news conference in City Hall.” (Michael Cooper, “Mayor Fights to Reduce Damage Awards”, New York Times, May 7 (reg)). See Steven Malanga, “Tort City”, City Journal, Spring 2001; “Tort Trauma”, Summer 2001. (DURABLE LINK)
May 8 — Blumenthal sues own client. Connecticut Attorney General Richard Blumenthal, whose never-ceasing quest for turf and publicity frequently earns him mentions in this space, has filed suit against a body called the Connecticut Siting Council in an attempt to stall construction of an underwater cable line that would supply electric power to New York’s Long Island. There’s just one problem: the Council is a unit of the state government and thus is among his own clients, being in fact “represented in court by members of Blumenthal’s office.” (Thomas Scheffey, “Can Connecticut AG Sue His ‘Client’?”, Connecticut Law Tribune, April 30). (DURABLE LINK)
May 7 — “Crime and Punitives”. The Supreme Court’s jurisprudence in civil punitive damage cases like BMW v. Gore — where it limited a state court’s multi-million-dollar punitive award over a new car’s undisclosed paint touch-up — turns out to have various organic connections with the course of its jurisprudence on arguably excessive criminal sentences, like those handed out under California’s “three-strikes” law. Why? “Because, when it comes to punishment, the Court should try to be consistent — even across the line dividing criminal law from civil law and the line dividing the Eighth Amendment from the due process clause. This isn’t just my opinion; it’s the Court’s.” (Evan Schultz, Legal Times, Apr. 19). (DURABLE LINK)
May 7 — “Big government ruined my long weekend”. A couple goes off for a brief getaway to the mountains, then realizes that the wife has left behind her prescription medication. Think they can convince a standby doctor to authorize four pills so that she can make it through the weekend? Forget it: “Between the War on Drugs and the liability climate, doctors are scared to death to make this kind of accommodation.” (Jim Henley, Unqualified Offerings blog, Apr. 6). (DURABLE LINK)
May 7 — “Reno owes the public answers”. If former attorney general Janet Reno is going to present herself to the voters of Florida as a candidate for governor, the least she can do is answer questions — raised anew by a PBS “Frontline” documentary last month — about whether her prosecution as Dade County district attorney of the sensational Country Walk ritual-child-abuse case resulted in the imprisonment of innocent defendants (editorial, St. Petersburg Times, Apr. 28; PBS/WGBH, “The Child Terror“; Dorothy Rabinowitz, “The Pursuit of Justice in Dade County”, Wall Street Journal, Oct. 28, 1996, reprinted at McGill University site; Rael Jean Isaac, “Janet Reno and her Record as a So-Called Champion of Children”, Independent Women’s Forum, Apr. 27, 2000). (DURABLE LINK)
May 6 — Fearing ethnic profiling charges, bureau ignored flight school warning. “An F.B.I. agent in Phoenix told counterterrorism officials at the bureau’s headquarters last July that he had detected an alarming pattern of Arab men with possible ties to terrorism taking aviation-related training, and urged a nationwide review of the trend, according to F.B.I. officials. The agent’s recommendation was not acted upon before Sept. 11, however … F.B.I. officials said there was reluctance at the time to mount such a major review because of a concern that the bureau would be criticized for ethnic profiling of foreigners.” (James Risen, “F.B.I. Told of Worry Over Flight Lessons Before Sept. 11”, New York Times, May 4; Kausfiles, “Hit Parade”, scroll to May 5). (DURABLE LINK)
May 6 — ReplayTV copyright fight. Television networks are suing the maker of the ReplayTV device, arguing, among other things, that their copyright is infringed by the device’s power to let users skip commercials during playback. To Steven den Beste, this is a bit like demanding that scissors be banned “because they might be used to clip articles out of magazines.” (U.S.S. Clueless, May 4; Christopher Stern, “Privacy Fight Centers on Ad-Zapper”, Washington Post, May 4). (DURABLE LINK)
May 6 — “Unharmed woman awarded $104,000”. “A woman who believes she was poisoned by a chemical spill in 1993 has been awarded [C]$104,000 by a Manitoba court, even though the judge acknowledged the woman is likely mistaken in her belief.” Lynette Mary Sant, 55, reported being exposed to fumes from a broken bottle of the chemical phenol. “Medical tests found no evidence of liver, kidney or nervous system damage.” When Sant was examined at a clinic, “it was found that while she exhibited symptoms when exposed to phenol, she also exhibited symptoms when exposed to distilled water.” (Francine Dubé, National Post, Apr. 26). (DURABLE LINK)
May 3-5 — Australian roundup: taxpayers pay for schoolyard fight. “A young man involved in a schoolyard punch-up with another student seven years ago was awarded more than [A]$1 million in damages yesterday because the teachers failed to provide adequate playground supervision.” At Narrandera High School, according to the record of the case, 13-year-old David Michael Griffin “and another student, Joshua Ferguson, met for an ‘arranged fight’ next to the basketball court, in the schoolgrounds, at lunchtime on March 1, 1995. Mr Griffin threw the first punches and Mr Ferguson hit back, knocking him to the ground.” (Ellen Connolly, “Former student wins $1m over injuries”, Sydney Morning Herald, May 1). “An entrepreneur schoolboy trying to save up for a skateboard by selling flowers has fallen foul of local laws by failing to take out a A$5 million ($2.70 million) public liability insurance policy.” (“Law Puts Schoolboy Flower Seller Out of Business”, Reuters, Apr. 23). And a dispute over team standings in the Australian soccer league may proceed to litigation (Michael Cockerill, “Con-undrum: who is in the finals?”, Sydney Morning Herald, Apr. 7). Plus: coverage of medical liability insurance crisis (“Health Under Threat”, news.com.au, May 3 and other dates) (DURABLE LINK)
May 3-5 — Update: Defend yourself in print and we’ll sue (cont’d). In a decision deplored alike by business groups and the ACLU, the California Supreme Court ruled Thursday by a 4-3 vote (PDF format) that that companies can be sued for false advertising over policy statements made in “issue ads”. The Nike Corporation had bought ads defending its record on the use of so-called sweatshop labor and was promptly sued by activists whose “private attorney general” action claimed that the ads violated the state’s fair advertising law (see Feb. 13). “What [Thursday’s] decision means,” says Deborah La Fetra of the Pacific Legal Foundation, “is that one side of the debate gets full free speech protection, but a corporation trying to defend itself is subject to strict liability.” (Mike McKee, The Recorder, May 3). UCLA free speech specialist Eugene Volokh, whose already-indispensable new blog it seems we are beginning to quote daily, has the perfect instant analysis complete with a hypothetical on speech by abortion clinics that may help drive home why this new decision is anything but “progressive” (May 2). (DURABLE LINK)
May 3-5 — “It’s No Laughing Matter”. The Chicago Tribune finds harassment law trainers continuing to warn management against tolerating an atmosphere of joking in the workplace: “once a disgruntled employee files a lawsuit, ‘they’ll remember every inappropriate joke (ever) told,’ said Malcolm Kushner, who teaches harassment classes to attorneys in Santa Cruz, Calif. ‘Even if they laughed at it (at the time), it looks horrible to a jury.'” (T. Shawn Taylor, Chicago Tribune, Apr. 28). (DURABLE LINK)
May 1-2 — What big teeth you have, Sen. Edwards. In this week’s New Yorker, Nicholas Lemann profiles ambitious trial lawyer/Sen. John Edwards of North Carolina, who is itching to run for President “as a trial lawyer”. (“The Newcomer”, May 6, not online.) Noteworthy line: “Throughout much of the South, trial lawyers are, in effect, the left: an influential group that, instead of converting populist sentiment into redistributionist legislation, converts it into big rewards for a small number of people who have stories of having been screwed by powerful, uncaring figures.” Mickey Kaus nails Edwards’ demagogic “us against them” populism as exactly the sort of thing you’d expect from one who chose his route to the top: “Trial lawyers like Edwards, Lemann notes, specialize in a theatrical form of scapegoating, taking complicated disasters and finding a ‘villain’ with deep pockets.” (Kausfiles, “Hit Parade: The pretty ShrumPuppet”, scroll to Apr. 30; InstaPundit, Apr. 30).
An analysis by Roll Call finds that Edwards (D-N.C.) “has relied almost entirely on his trial lawyer friends” to underwrite his $1.39 million war chest. “Of that total, $1.19 million — 86 percent — came from lawyers, their employees or their family members, …. No other Congressional leader or potential presidential contender has such a heavy reliance on a single industry for their leadership PAC. Edwards … makes a point of stressing that he won’t take money from PACs or registered lobbyists”, but conveniently trial lawyers don’t need to couch their donations in either of those forms. (Paul Kane, “Trial Lawyers Fuel Edwards’ Efforts”, Roll Call, Apr. 25; see Ribstone Pippin blog, Apr. 28) (& welcome Andrew Sullivan readers). (DURABLE LINK)
May 1-2 — Ad model sues tobacco company. “An Arkansas man who said he worked as a model in cigarette ads in the late 1970s sued R.J. Reynolds Tobacco Co. yesterday, saying he experienced years of emotional distress from enticing people to smoke. Raymond Leopard of Little Rock seeks at least $65 million in damages in the lawsuit filed in U.S. District Court … The suit said Mr. Leopard worked as the ‘Winston Man’ from 1978 to 1980, pictured in Winston cigarette ads in popular magazines. The suit said he never smoked Winstons. … ‘His reputation has been forever tarnished and his personal credibility diminished,’ the suit said.” (“Former tobacco model sues Reynolds over ‘reputation'”, Washington Times, Apr. 30). (DURABLE LINK)
May 1-2 — “Injudicious conduct”. National Law Journal‘s annual roundup of bad behavior on the bench includes cases mentioned previously in this space (Amundson, Couwenberg) plus a bunch of others (Gail Diane Cox, National Law Journal, Apr. 23). (DURABLE LINK)
May 1-2 — “Don’t sue for Israel”. Following legal threats, a small Texas automotive exporter has apologized for apparently having refused to do business with Israeli firms and citizens. When the story circulated last week, our friend James Taranto at the WSJ/OpinionJournal’s “Best of the Web” audibly hoped that the exporter would get in trouble under the odd “antiboycott” law that makes it a federal offense, inter alia, for an American company to engage in “actual refusal to do business with or in Israel”. (“Best of the Web”, Apr. 25; W. Gardner Selby, “Texan’s fax causes international fuss”, San Antonio Express-News, Apr. 30). But Sasha Volokh points out the inconsistency of the antiboycott law with the principle of free association, connects that theme nicely with the Boy Scouts v. Dale case and hate speech litigation, and adds a bunch of useful links (“Don’t sue for Israel”, Volokh brothers blog, Apr. 28). (DURABLE LINK)
May 20-21 — “Next tobacco” watch: gambling. “One of the first state attorneys general to sue the tobacco industry told a problem gambling conference Thursday that the gaming business will be the next target for lawyers seeking compensation for addicts. As gambling continues to expand in Connecticut and across the country, ‘somebody is going to sue somebody,’ former Massachusetts Attorney General Scott Harshbarger told participants at the New England Conference on Problem Gambling.” Harshbarger, who now heads the private group Common Cause, said “there is a dramatic public health cost, there is a dramatic social cost” to the wagering habit. “In Canada, Harshbarger’s prediction is already reality. Last week, a judge allowed a class-action lawsuit against Loto-Quebec to go forward. The lawsuit seeks hundreds of millions of dollars in damages on behalf of people addicted to video lottery terminals.” (see June 20, 2001) (Rick Green, “Problem-Gambler Suits: Activist Foresees Damage Claims”, Hartford Courant, May 17) (see May 31, Jun. 28-30). (DURABLE LINK)
May 20-21 — “A Fence Too Far”. “Whether you believe that this country should be tightening copyright protections online or loosening them, you should oppose the Hollywood- and record industry-endorsed bill introduced in March by Sen. Ernest Hollings of South Carolina,” argues commentator Roger Parloff. “While the draft legislation, known as the Consumer Broadband and Digital Television Promotion Act, pursues plausible goals, it seeks to achieve them by authorizing mammoth government intrusion into the design of computer hardware and software.” Although Parloff considered Napster illegal and views the DMCA as constitutional and sensible, he draws the line at the latest: “The prospect of gumming up the works of the globe’s most exuberant engine of technological innovation and prosperity by subjecting it to bureaucratic notice-and-comment rule-making is unthinkable. … If controlling digital property requires government intervention on this scale, then there should be no such control.” (American Lawyer, May 15). For more critiques of the Hollings bill, see many items and links on InstaPundit. (DURABLE LINK)
May 20-21 — “Trial Lawyers Go to War Against Arbitration”. Trial lawyers keep trying to kill arbitration as an alternative to the lucrative litigation process, and Stephen J. Ware, professor of law at Samford University, blows the whistle on them in a series of new Cato Institute publications (“Arbitration Under Assault: Trial Lawyers Lead the Charge”, Cato Institute Policy Analysis #433, Apr. 18; news release; “Trial Lawyers Go to War Against Arbitration”, Cato Daily Commentary, May 3). Ware also rebuts the Nader-founded litigation lobby Public Citizen, which recently “released a study claiming that it costs significantly more to resolve disputes through arbitration than through the court system”. (“Public Citizen Arbitration Study Contains Errors, Half-Truths and Exaggerations, Scholar Says”, Cato news release, May 3; “Arbitration costs are so high, many victims are unable to pursue complaints, new Public Citizen report reveals”, Public Citizen news release and link to study, May 1). It might be noted, incidentally, that the same profession that does so much sniping at arbitration when conducted by anyone else is perfectly free to get its clients to enter binding arbitration agreements: “Lawyers can include arbitration clauses in retainer agreements for fee disputes and malpractice claims so long as the client consents after receiving full disclosure, an American Bar Association ethics panel concluded”. (“ABA Panel OKs Arbitration Clauses in Retainers Based on Informed Consent”, New Jersey Law Journal, Apr. 16). We hope the lawyer members of ATLA and similar groups will show the sincerity of their opposition to arbitration by pledging never to make their own clients sign such an arbitration agreement. (DURABLE LINK)
May 20-21 — “The Trials of John Edwards”. The prospective White House run of trial lawyer/Senator John Edwards might be just what’s needed to politically energize the nation’s doctors at last — in opposition to Edwards, that is (Radley Balko, “Malpractice Suits Driving Out Doctors”, FoxNews.com, May 9). In National Review Online, Byron York takes issue with Edwards’ rough handling of Fifth Circuit judicial nominee Charles Pickering: “Edwards’s performance was almost a parody of the bad-guy trial lawyer. In an aggressive cross-examination, Edwards relied on misleading questions, misrepresented premises, and unfounded conclusions as he tried to force Pickering to admit wrongdoing. Although Edwards’s style was extraordinarily smooth and polished, it was precisely the kind of exhibition that reinforces the worst images of trial lawyers — whether they are running for president or not.” (“The Trials of John Edwards”, May 6). See also Eric Dyer, “Conservative detractors taking swipes at Edwards”, Greensboro (N.C.) News-Record, May 12; Joshua Green, “John Edwards, Esq.”, Washington Monthly, Oct. 2001; Ned Martle, “Starting Gun”, New York, May 28, 2001. (DURABLE LINK)
May 17-19 — Flowers, perfume in airline cabins not OK? “The Canadian Transportation Agency has issued a landmark ruling that could affect what passengers are allowed to take on airplanes, including pets, flowers and even the perfume they wear. The CTA ruled that allergies can be considered a disability and said it will investigate seven complaints against Air Canada by passengers who had allergic reactions to dogs, cats, flowers and paint.” The agency’s mandate includes the removal of “undue obstacles” for disabled travelers. (Paul Waldie, “Allerge ruling nothing to sneeze at”, Globe and Mail, May 14). For more on anti-scent policies in Canada, see Apr. 24, 2000. (DURABLE LINK)
May 17-19 — Charged $16,000 for brief he copied from book. The Iowa Supreme Court has given a six-month license suspension to attorney William J. Lane for claiming to have spent 80 hours writing a brief which the court found he had in fact mostly copied from Barbara Lindemann’s and Paul Grossman’s “Employment Discrimination Law,” a standard 1996 treatise. Lane, of Sioux City, had submitted an overall $122,000 fee bill to the court for representing a client in an Americans with Disabilities Act case, including $16,000 for writing the brief in question. “Lane plagiarized from a treatise and submitted his plagiarized work to the court as his own,” the court said. “This plagiarism constituted, among other things, a misrepresentation to the court.” Lane’s overall fee award in the case was reduced by about five-sixths, to $20,000. (Mike Glover, “Lawyer’s License Suspended for Plagiarizing Treatise”, AP/Law.com, Apr. 4). (DURABLE LINK)
May 17-19 — Ob/gyns warn of withdrawal. “On May 6, most of the obstetricians in Las Vegas adopted a policy of rejecting newly pregnant women as patients, even if the woman was an existing patient.” (Wendy McElroy, “Lawsuits Fueling Health Care Crisis”, Fox News, May 14). The American College of Obstetricians and Gynecologists has issued a “Red Alert” warning that shortages of liability insurance may soon leave many areas of the country, particularly rural areas, without adequate obstetric services. (Ed Susman, “Obstetricians issue alert on insurance”, UPI Science News, May 6; Marilyn Elias, “Obstetricians dwindle amid high malpractice costs”, USA Today, May 6). And at medical weblog MedPundit, Sydney Smith offers a rebuttal to an op-ed piece in which the president of the Association of Trial Lawyers of America blames the malpractice crisis on “negligence of bad doctors and the bad business decisions of insurance companies”. (MedPundit, May 15; Leo V. Boyle, “It’s not patients’ fault when insurance earnings dip”, Akron Beacon Journal, Apr. 14) (DURABLE LINK)
May 16 — TV’s lawyer dramas: why they hit home. “What many of these shows do best is attack the legal system for being obsessed with achieving correct legal results even if the outcomes are morally wrong. … The greater cynicism and resentment [in jokes about lawyers] is reserved for the moral lapses and legal hair-splittings, the way in which the demands of lawyering furnish a license to engage in dishonest behavior. ‘Lawyers go into court and deny what they know to be true,’ said William Finkelstein, another former lawyer and executive producer of ‘L.A. Law,’ who produced and wrote [a reunion show for the series that aired May 12]. ‘Whenever anyone does that, it doesn’t square with our vision of public morality, and on television we try to get underneath that, or reject it entirely.'” (Thane Rosenbaum, “Where Lawyers With a Conscience Get to Win Cases”, New York Times, May 12)(reg). Meanwhile, the American Bar Association is the latest establishment law group to conduct a public survey finding that lawyers are poorly regarded by the public, a phenomenon it chooses to blame — you guessed it — on negative media portrayals rather than anything real about today’s legal system that the media might be picking up on. (Mary P. Gallagher, “ABA Survey Finds Lawyers Among Lowest-Regarded U.S. Professions”, New Jersey Law Journal, May 7). (DURABLE LINK)
May 16 — Catharine MacKinnon, call your office. Latest case illustrating how sexual harassment law can be turned to purposes rather remote from those one associates with feminism: “In a federal lawsuit brimming with biblical references, a Tennessee administrative law judge charges that her supervisors have created a hostile work environment for women and that she has been the victim of discrimination because of her religious beliefs.” The lawsuit by a judge, 45, against her employer, the Tennessee Department of State, charges that co-workers circulated sexually explicit jokes in email and that “her religious belief that homosexuality is a sin puts her at odds with someone in her office”. “‘The plaintiff is a Bible-believing Christian who holds to the orthodox belief that the Bible is absolutely true; the Bible contains no mistakes; and the Bible has no contradictions or inconsistencies,’ her suit states, before listing citations from Psalms, Proverbs, John and Revelations. Biblical references aside, the suit is also filled with language often found in federal discrimination cases.” The judge charges that she was assigned a heavier workload and drew poorer evaluations than she deserved, and that “when she posted notices on department bulletin boards about the National Day of Prayer last year, they were taken down without her permission”. (Rob Johnson, “Judge files bias suit against state office”, The Tennessean, May 7). (DURABLE LINK)
May 16 — Annals of zero tolerance: steak knives, finger “guns”. The Washington Times has an overview of zero tolerance controversies which mentions this site (Valerie Richardson, “Zero tolerance takes toll on pupils”, May 13). In Leesburg, Ga., 18-year old Lee County High School senior Chet Maine “was expelled three weeks before graduation after school officials found two steak knives in the bed of his pickup truck. … Maine claimed the knives were left over from a weekend camping trip he had taken with friends. But the county school said it was bound by a state zero-tolerance policy for weapons in school.” (AP/WTLV (Fla.), May 8). In Colorado, “Dry Creek Elementary school has disciplined seven boys for playing a game of ‘army and aliens’ in which they used their fingers as imaginary weapons and pretended to shoot creatures in the background. … And, in an Orwellian touch, at least one student was interrogated by school officials who asked whether his family had real guns at home.” (“Zero common sense” (editorial), Denver Post, May 15; Robert Sanchez, “Zero tolerance turns into 100 percent trouble”, Rocky Mountain News, May 14; “Overreacting to gun games” (editorial), May 15; Mike Littwin, “Not to point fingers, but schools really need to get a grip”, May 16). At Mellon Middle School in Mt. Lebanon, Pa., 11-year-old Becca Johnson was suspended for drawing stick-figure doodles of teachers with arrows through their heads, in a moment of frustration after she had done badly on a test; the same week, “a 17-year-old in Fayette County, Ga., was suspended and arrested when school officials found a machete he used in his part-time landscaping business in the back of his truck, which he’d driven to school.” (Dean Schabner, “Zero for conduct”, ABCNews.com, May 8). (DURABLE LINK)
May 14-15 — Officious intermeddlers, pet division. Animal-rights lawyers are looking for the perfect chimp case to establish their right to file legal actions on behalf of animals; U. of Chicago law prof and frequent New Republic contributor Cass Sunstein, like Harvard’s Larry Tribe (see Apr. 29), seems on board with the plan. The article’s scariest bit appears toward the end, where the executive director of the Animal Legal Defense Fund says the fund is getting involved in “custody battles over pets” such as cats and dogs: “the fund has been submitting legal briefs to the courts, suggesting that judges look at the case in terms of the animal’s interest.” Just what divorce law needs: an influx of ideologically motivated outside lawyers filing new paperwork to which spouses will have to pay their lawyers to respond, and perhaps urging judges to impose “remedies” over the objections of both human parties. And how long before they start asking the judge to subtract a suitable fee from the marital estate to compensate them for their animal-advocacy efforts? (Amanda Onion, “Fighting for Moe: Activists Pursuing Legal Status for Animals One Case at a Time”, ABC News.com, May 13). P.S. Or could “custody battles over pets” refer to something other than family law cases? The ALDF website doesn’t seem to mention any cases fitting that description. (DURABLE LINK)
May 14-15 — New York Times endorses liability reform! With respect to lawsuits against City Hall, at least. Well, it’s a start (“Slip, Fall, Collect” (editorial), May 13 (reg)). (DURABLE LINK)
May 14-15 — “Tilting the Playing Field”. While on the subject of pleasing if belated developments at the Times, the paper has now officially taken note of the devastation visited by the federal government’s Title IX on “smaller” men’s collegiate sports such as track and field, wrestling, and diving (Bill Pennington, “More Men’s Teams Benched, As Colleges Level the Field,” New York Times, May 9 (reg)) (our take on Title IX). See also Kathryn Lopez, “Benched at Bowling Green”, National Review Online, May 10) (men’s sports at Bowling Green State U.) In a new book entitled Tilting the Playing Field, Jessica Gavora not only recounts the sad history of quota-mongering in collegiate sports participation but warns that feminist litigators are rapidly pushing the mandates of Title IX into academic areas. Perhaps most alarming is the prospect of an assault on numerical imbalances in the hard sciences: “to get the numbers right, universities likely will end up having to discourage men from pursuing scientific and engineering careers.” (Nick Schulz, “Feminism vs. Sports and Science”, TechCentralStation, May 10). (DURABLE LINK)
May 14-15 — The mystery of the transgenic corn. In March a federal judge approved the settlement of a class action lawsuit filed after the disclosure that genetically modified corn had found its way into products on grocery shelves in violation of an EPA permit which gave it the green light only for use as animal feed. The food companies “will attach $6 million in coupons, each good for a dollar off, to packages of their products. … The Chicago law firm of Krislov and Associates will receive $2.4 million for filing the class action lawsuit on behalf of consumers who said they suffered allergic reactions from eating food products that contained the genetically modified corn.” Too bad the case settled, since we would have looked forward to hearing the expert testimony about those claimed allergic reactions (Mike Robinson, “Judge Approves $9M Settlement in Engineered-Corn Suit”, AP/Law.com, Mar. 8). (DURABLE LINK)
May 13 — “Friends Don’t Let Friends Plead Guilty”. This slogan, for a lawyer who defended accused drunk drivers, made for “one of the most effective ads I’ve seen”, though “I’m not sure I agree with the sentiment, either as an ethical matter or a pragmatic matter”. (Eugene Volokh, Volokh brothers blog, May 10). (& see letter to the editor, Jun. 14 (pointing out website of L.A. law firm that has trademarked this phrase)). (DURABLE LINK)
May 13 — “The Tort Mess”. “It’s even worse than you think.” Cover story in Forbes tours some of the best-known lawsuit disaster areas including Mississippi medical practice, asbestos litigation, condo construction-defect suits (Michael Freedman, Forbes, May 13). Plus: opinion pieces on similar themes (Alex F. Rubalcava, “The Cost of Legal Extortion””, Harvard Crimson, Apr. 17; Pejman Yousefzadeh, “Delay No Longer”, TechCentralStation, Apr. 8). (DURABLE LINK)
May 13 — Bush’s big mistake on mental health coverage. Commentators have given the president pretty much a free pass on his call for forcing health insurance plans to cover mental-health services at some rate that reflects “parity” with therapy for physical illness. Potential critics may hold their tongues for fear of being charged with ignorance about mental illness or animus toward those it affects. But the “Bush plan is vintage Clinton: Give Washington the credit for doing good, but send the private sector the bill, and let someone else worry about the consequences.” (Steve Chapman, “Delusions on mental-health treatment”, Chicago Tribune, May 9). (DURABLE LINK)
May 31-June 2 — Welcome Fox News viewers/readers. Our editor is interviewed on air and quoted in print in this piece on the quest to make casinos and lottery operators the next Big Tobacco (Alisyn Camerota, “Trial Lawyers Target Gambling”, Fox News, May 31) (see May 20-21). (DURABLE LINK)
May 31-June 2 — “After stabbing son, mom sues doctors”. Pennsylvania: “Janice Taylor, who stabbed her 4-year-old son two dozen times outside their Lake Ariel home in 2000, is suing her doctors for not adequately responding to her psychosis as she neared the end of a pregnancy.” (Scranton Times Tribune, May 29). (via WSJ OpinionJournal “Best of the Web“, May 30). (DURABLE LINK)
May 31-June 2 — Activist judges north of the border. In the United States judicial activism has been falling into gradual disrepute for a quarter century, but in Canada many highly placed jurists seem eager to boogie like it’s 1975: the Ontario Court of Appeal has just struck down as unconstitutional one of the central planks in welfare reform, the principle that recipients with live-in boyfriends should not draw benefits accorded to single mothers. It’s only the latest in a long string of decisions in which judges seem to be writing their own preferences into law, according to columnist Christina Blizzard. Earlier this year the Supreme Court of Canada struck down as unconstitutional a Conservative government’s repeal of a law authorizing unionization of workers on family farms, although the effect of the repeal would only have been to revert to the state of the law as of a couple of years previously. Next up: a challenge to another plank of welfare reform, a lifetime ban on payment of benefits to persons caught cheating the system. Paging Mickey Kaus — they need you up there! (Christina Blizzard, “Disorder in the court”, Toronto Sun/Canoe, May 18). On U.S. judicial activism, see John Leo, “Running away with the law”, U.S. News/Jewish World Report, May 13. (& see letter to the editor, Jun. 14). (DURABLE LINK)
May 31-June 2 — Folk medicine meets child abuse reporting. The Vietnamese and Hmong folk remedy cao gio, or coining, “involves the rubbing of warm oils or gels across a person’s skin with a coin, spoon or other flat object. It leaves bright red marks or bruises, but many Asian families believe the marks represent bad blood rising out of the body and allow improved circulation and healing.” The lesions are typically not of medical significance, according to many Western medical observers, but they sometimes lead school and social service workers to report suspected child abuse, in part owing to the influence of laws mandating that possible instances of abuse be reported even if borderline. In Omaha, following such reports, police swooped down and removed ten children from their parents; following an outcry, charges against the parents were dropped and the children were returned to their homes. (Omaha World-Herald coverage including Joe Dejka, “Asian couples work to get children back”, May 3; Jeremy Olson, “Asian remedy raises few alarms elsewhere”, May 3; Joseph Morton, “2nd coining case dropped; Asian family expresses relief”, May 14; Karyn Spencer and Angie Brunkow, “Officials not sanctioning all ‘coining'”, May 17). (DURABLE LINK)
May 30 — “Oxy Morons”. “Last fall,” reports Forbes, North Carolina law firm Lutzel & Associates “sent a letter soliciting users of [time-release pain medication] Oxycontin and several other drugs. Claiming that the Food & Drug Administration had ‘banned’ the medications, the letter advised them to ‘stop using’ the drugs immediately.” But in fact Oxycontin was neither banned nor threatened with removal, and for a patient suffering pain suddenly to discontinue its use without a doctor’s recommendation can result in medically serious consequences as well as needless agony. (Ian Zack, “Oxy Morons”, Forbes.com, Apr. 29). Despite vigorous efforts by some plaintiff’s lawyers to stoke mass tort litigation over the drug (see Apr. 10 and links from there), the National Law Journal reports that drugmaker Purdue Pharma has “had a string of confidence-building victories in early litigation.” (Bob Van Voris, “OxyContin Maker Not Yet Feeling Much Pain”, National Law Journal, April 30). (DURABLE LINK)
May 30 — “Privileged chambers”. Earlier this year the Albany Times Union ran a five-day editorial series (“Unequal Justice” — scroll down to find it) on judicial misconduct in New York state. It concluded that discipline is generally lax when Empire State judges behave badly and that it can take years to remove a jurist from the bench even after charges of serious misconduct (“Privileged chambers”, Feb. 3; “Justice denied”, Feb. 4; “Conduct unbecoming”, Feb. 5; “Starving the watchdog”, Feb. 6; “The need for reform”, Feb. 7). (DURABLE LINK)
May 29 — Our editor interviewed. John Hawkins at Right Wing News interviewed our editor by email about this site and our ideas on legal reform, and publishes the results this morning (“An Interview with Walter Olson“). Earlier interviewees in the series include Glenn Reynolds of InstaPundit, Wendy McElroy of iFeminists and FoxNews.com, and Australian journalist Tim Blair. Update: nice things said about this by Protein Wisdom, VodkaPundit, and Eve Tushnet.
May 28-29 — The scandal of the Phoenix memo. It warned FBI higher-ups that Islamic radicals including followers of Osama bin Laden were training at American flight schools. So why wasn’t it followed up? FBI director Robert Mueller told Senators May 8 that it would have been a “monumental undertaking” to investigate the 20,000 or so students at domestic flight schools. “What a load of nonsense,” writes Christopher Caldwell. “Any small-town newspaper reporter could have narrowed down that 20,000 to under a hundred in an afternoon, just by focusing on names like … oh, I don’t know … try Mohamed, Walid, Marwan, and Hamza. Couldn’t the entire FBI have done the same?
“As it turns out, no. And the reason is, whoever got Williams’s memo would understand that there is one commonsensical way to implement it: Look for Arabs. And given congressional pressure on racial profiling and the president’s own outrageous pandering on the subject during the 2000 election campaign, Williams’s lead was something no agent with an instinct for self-preservation would want to touch with a barge pole.” (Christopher Caldwell, “Low Profile”, Weekly Standard, May 24) (via WSJ Best of the Web, May 24). See also John Fund, “Willful Ignorance”, WSJ OpinionJournal.com, May 22; “Key Lawmaker: Probe of FBI Warrant Will Look at ‘Racial Profiling’ Concerns”, AP/Fox News, May 26). Update: perfect Mark Steyn column (“Stop frisking crippled nuns”, The Spectator, May 25). (DURABLE LINK)
May 28-29 — “Rocketing liability rates squeeze medical schools”. “The University of Nevada School of Medicine in Reno could be forced to close if it can’t find affordable liability insurance by June 30. In West Virginia, Marshall University’s Joan C. Edwards School of Medicine in Huntington has cut its pathology program and is trimming resident class size. Pennsylvania State University College of Medicine in Hershey is cutting faculty salaries, which will make it hard to land top researchers. ‘The sudden, very large increase in expenses that were not anticipated or budgeted is creating a great deal of anxiety,’ says Jordan J. Cohen, MD, president of the Assn. of American Medical Colleges.” (Myrle Croasdale, American Medical News, May 20). (DURABLE LINK)
May 28-29 — “Barbed wire might hurt burglars, pensioner warned”. In Northampton, England, 94-year-old Ruby Barber has finally gotten permission from the borough council to put barbed wire on her garden walls after suffering four break-ins to her bungalow over the past year and a half. The council granted permission “as long as she uses warning signs and agrees to take full responsibility if a would-be intruder is injured“. Her son Burt, who lives nearby, said: “It is bordering on the ridiculous to say that if they hurt themselves getting in here I am responsible. The Queen has got it all around Buckingham Palace and if it is good enough for her it is good enough for my mother. She is the Queen to me.” (Ananova, May 24). (DURABLE LINK)
May 28-29 — Must-know-Spanish rules defended. Recently it was reported that a Miami social services agency was requiring an Anglo worker to learn Spanish on pain of losing her job. Some commentators were upset, but Eugene Volokh, of the Volokhii, argues that “speaking a foreign language is a valuable skill, and … employers may legally discriminate against employees who lack this skill”. (Volokh blog, May 8, May 11; Jim Boulet Jr., “Mandatory Spanish”, National Review Online, May 10, and running commentary by Boulet at English First site). And the factual background of the case turns out to be considerably less simple than first reports indicated; not only does the county deny that failure to learn Spanish was the reason for the worker’s firing, but it seems she held herself out as having “proficiency” in that language when she accepted the job (Jay Weaver, “Poor work, not language barrier, got employee fired, court says”, Miami Herald, May 11). (DURABLE LINK)
May 28-29 — Goodbye, Wendell Barry. Eve Tushnet administers a well-deserved thrashing to the overrated localist (“Hayseeds and Straw Men”, Eve Tushnet blog, May 27) (DURABLE LINK)
May 27 — McArdle on food as next-tobacco. “If you can’t be held responsible for what you put in your mouth, what are you responsible for?” (Megan McArdle, “Can We Sue Our Own Fat Asses Off?”, Salon, May 24). See also Duncan Campbell, “Junk food firms fear being eaten alive by fat litigants”, The Guardian, May 24; Jacob Sullum, “Food Fight”, Reason Online, May 10 (& see Jun. 3-4). (DURABLE LINK)
May 27 — “Lawsuit stifles Internet critics”. The Richmond Times-Dispatch and Long Island Business News have new stories out on the PetsWarehouse case (in which a pet store owner has sued aquatic plants hobbyists on charges of online defamation based on their postings on mailing lists and websites — see Aug. 6, 2001 & May 22, 2002). Both interview several parties, including defendant Dan Resler (a professor at Virginia Commonwealth University), plaintiff Robert Novak, and (in the Richmond paper) free-speech law commentator Rodney Smolla. A key factor working to defendants’ disadvantage: liberal jurisdictional rules which allow a plaintiff to file an Internet libel case in his local court (in this case the Eastern District of New York) and force defendants who live in distant states to shoulder the cost of litigating there from a distance. (Gordon Hickey, “Online speech not free”, Richmond Times-Dispatch, May 26). In Long Island Business News, owner Novak is quoted as being aware of this cost asymmetry: “‘It’s only five miles for me,’ he said. ‘All these people have to come here at their own expense.'” (Ken Schachter, Long Island Business News, “PetsWarehouse.com founder dries out aquarists in courts”, May 24-30). More on Internet jurisdiction: Carl S. Kaplan, “A Libel Suit May Establish E-Jurisdiction”, New York Times, May 27 (reg). Update Oct. 4-6: Novak sues Google and other defendants. Further update: Oct. 5, 2003. (DURABLE LINK)
May 24-26 — Nader credibility watch. In France, the litigation advocate called fast-food restaurants “weapons of mass destruction”. (“Ralph Nader met en garde les Français contre les ‘fast food'”, Yahoo/AFP, May 17; via Matt Welch, May 18; see comments at Tim Blair blog, May 26). More on Nader’s credibility or lack thereof: Matt Welch, “Speaking Lies To Power”, Reason, May; Thomas Oliphant, Boston Globe, Apr. 21. (DURABLE LINK)
May 24-26 — “Counseling center may face closure”. Chickasha, Okla.: “The largest civil verdict in Grady County history may mean the county’s largest mental health center will have to close for financial reasons, officials said Wednesday. A $1.5 million jury verdict awarded last week against Chisholm Trail Counseling Service was a bittersweet victory for the family of James Phillips, who committed suicide a few hours after being interviewed and released by one of the agency’s counselors.” (Penny Owen, The Oklahoman, May 23). (DURABLE LINK)
May 24-26 — Australia’s litigation debate. “Some of Australia’s most famous beaches face closure after a huge damages award to a man paralysed while swimming at Bondi Beach, local authorities have warned.” (BBC, “Closure ‘threat’ to Australia’s beaches”, May 14). Former chief justice of the High Court of Australia Harry Gibbs “said the culture of litigation had been fostered by some lawyers, while some judges seemed to strive to find a reason for finding in favour of an injured plaintiff and award damages in cases where a reasonable and informed person would not have thought the defendant was at fault. He said the deficiencies of the law of negligence had now become apparent. ‘It favours generosity to the plaintiff at the expense (in many cases) of justice to the defendant’.” Gibbs suggested that Australia might want to consider emulating the New Zealand model under which most negligence actions are replaced with a system of no-fault compensation. (“Lawyers blamed for crisis” (editorial), Queensland Courier-Mail, May 16). See Susanna Lobez, “Snails, Consumer Power and the Law”, ABC national radio transcripts, The Law Report, June 1, 1999)
“The latest figures available from the Australian Bureau of Statistics show that as of June 30, 1999, there were 10,819 barrister and solicitor practices in Australia, an increase of 11 per cent over three years, and these practices generated an income of $7.04 billion, a robust 27 per cent increase over three years. Income from personal injury cases grew still faster, by 31 per cent.” What strikes us as remarkable about these figures is not just the rapid growth in sums redistributed, but that the figures are obtainable at all. Virtually no data is available, reliable or otherwise, on how much money American lawyers receive in the aggregate from personal injury cases. Why not? If the answer that occurs to you is “because our legal profession doesn’t want it to be collected”, you may be on to something. (Paul Sheehan, “Laws made by lawyers — well they would like that, wouldn’t they?”, Sydney Morning Herald, May 6). (DURABLE LINK)
May 22-23 — Convicted hospital rapist sues hospital. “A Sandusky man serving a 10-year sentence for raping a patient at the former Providence Hospital is suing both the hospital and his former attorney for negligence, according to Erie County Common Pleas Court records. Edward Brewer filed suit Monday against Providence Hospital, now part of Firelands Regional Medical Center, for ‘inadequate security in protecting visitors as well as their patients’ which caused him pain and suffering, according to court documents. Brewer, 47, was found guilty in October of raping a 44-year-old acquaintance in her hospital bed in June 1998. … Brewer claims negligence by the hospital, including a poorly trained nursing staff, negatively affected his criminal case, according to the suit.” The suit, which Brewer filed on his own behalf, asks for $2 million in damages; separately, Brewer is suing his former criminal attorney. (Emily S. Achenbaum, “Convicted rapist sues hospital”, Sandusky [Ohio] Register, May 21). Update: court dismisses case, see Mar. 5-7, 2003. (DURABLE LINK)
May 22-23 — Reparations suits “pure hooey”. The “slave-reparation plaintiffs have articulated neither standing nor a cognizable claim. In the final analysis, these cases are not really about pushing the envelope and making new law. Rather, they are part of a strategy to inflict public relations damage in order to coerce political and economic concessions. The federal courts should stand firm against this gathering storm, dismiss the lawsuits and leave the complex issues of social policy they raise to the political process.” (Steven P. Benenson, “Reparations Suits Are Too Little, Too Late”, National Law Journal, May 20). “Any judge not assessing sanctions for the filing of frivolous litigation should be ashamed. … So much for laches, the statute of limitations and all the other legal devices that assure that disputes are resolved in a timely manner. No wonder the world laughs at our love of litigation.” (Norm Pattis, “The Color of Money: It’s Red for Reparations”, Connecticut Law Tribune, Apr. 15).
“The villain Calvera said, ‘Generosity, that was my first mistake,’ as he peered ominously from beneath his mega-sombrero at the gringo gunman in the classic scene from the 1960 film The Magnificent Seven. … Honchos at Aetna Inc., the insurance company named in a recent lawsuit seeking reparations for slavery, must be remembering that quote right about now.” (Gregory Kane, “Generosity goes unnoticed in slavery reparations lawsuit”, Baltimore Sun, Apr. 20). Kane says Aetna has responded to the suit with “infuriating wussiness” and says “what Aetna bigwigs should tell [plaintiff-activist Deadria] Farmer-Paellmann and her lawyers [is]: ‘Get a life!'” (DURABLE LINK)
May 22-23 — PetsWarehouse.com defamation suit, cont’d. Last year we reported on the ongoing litigation filed by Robert Novak, founder and owner of PetsWarehouse.com, against members of an internet discussion list that he said had defamed him and his company (see Aug. 6, 2001; letter to editor from Novak, Aug. 10). Many aquarium enthusiasts, alarmed by the legal action, have at various times posted information on their sites about the suit, sometimes posting banners that solicit donations on the defendants’ behalf. (“$15,000,000 lawsuits suck the life out of online discussions. Please support the APD Defense Fund,” reads one.) According to Katharine Mieszkowski, writing last month in Salon, a number of these site operators have been given reason to regret that they ever took such rash steps. In particular, according to Mieszkowski, Novak has proceeded to add more defendants to the suit, including supporters of the APD Defense Fund who put up its banner solicitations, and the webmaster of a site that had posted information on the case, charging them with violating his PetsWarehouse copyright and engaging in a conspiracy against him. Among evidence of copyright infringement offered in his suit was webmasters’ use of Pets Warehouse as a “metatag”, that is to say, a keyword directed at search engines but not normally seen by ordinary users (more on metatag litigation: Sept. 25, 1999).
A number of defendants have settled out of the case, including a Colorado webmaster who says she spent thousands on her defense and who turned over the rights to her domain to Novak as part of the settlement, having shut it down after being sued. “Other defendants had to run banners on their sites promoting Pets Warehouse.” “According to [defendant Dan] Resler, at one point, the money in the defense fund ran out, and when the defendants had to start paying out of their own funds, they got scared. (Novak is representing himself ‘pro se’ in the case.)” Resler himself agreed to pay $4,150. “Beyond the lawsuit itself, other supporters of the case say they have received cease-and-desist letters for using the words ‘Pets Warehouse’ on their sites.” Among them: the webmaster of a site that “features a banner advertisement that mentions the case with this headline: ‘Pets Warehouse Sues Hobbyists’ and links to the aquarists’ site about the case. ‘I’m just literally reporting that the case exists and linking to another site,’ he says.” (Katharine Mieszkowski, “Free speech and the Internet; a fish story”, Salon, Apr. 4). (DURABLE LINK)
April 20-22 — Quite an ankle sprain. Michele Nations, 26, who sprained her ankle five years ago when she tripped into a hole at a municipal park in Tucson, has now been awarded $450,000 by a local jury. Nations’ attorney “says the case hinged on the city’s responsibility to post adequate warning about burrowing animals [such as squirrels and gophers] and to provide a safe alternative to dodging holes and caved-in tunnels.” An attorney for the city differs, and calls the outcome astonishing: “You would think in a park — in a natural space — people should have to watch where they’re going.” (April 19: Maureen O’Connell, “Gopher hole may cost city $450K”, Arizona Daily Star; “Jury awards Tucson woman who stepped into hole at a park”, AP/Arizona Republic). (DURABLE LINK)
April 20-22 — Thank you, Your Honor. The May Brill’s Content has a cover story (teaser only online) entitled “Human Portals: How people with an obsession — and a website — are upstaging big media”. It tells how weblogs, link-rich sites regularly updated and often zeroing in on a specialized theme, are the new Big Thing in online media; typically “curated by one person”, according to editor in chief David Kuhn, they “could teach big media portals a lot about engaging their audience”. Happy to read all this, we were particularly pleased to turn to the sidebar feature in which the magazine surveys a group of public luminaries about their favorite websites, which range from eBay (Nora Ephron) to 10KWizard.com (Gretchen Morgenson). And here’s Alex Kozinski, distinguished federal judge on the Ninth Circuit U.S. Court of Appeals, on his favorite: “Overlawyered (overlawyered.com) provides pointers to legal-system horror stories: the accused rapist who pockets disability checks for his ‘sexual compulsion’; the drunk who climbs a voltage tower and sues the utility company when he gets injured; the guy who murders his mom and sues his shrinks for not stopping him. The site is run by Walter Olson, who likes nothing better than reporting on legal overkill, and he’s compiled serious research tools for anyone interested in trends and abuses within the civil litigation system.” Thank you, Your Honor! (DURABLE LINK)
April 20-22 — Comparable worth in Maine. Despite widespread criticism of the idea from economists and others, Maine has enacted new rules opening private employers to a serious threat of legal action if they pay less to a worker of one gender than to a worker of the opposite gender “for comparable work on jobs with comparable requirements related to skill, effort and responsibility”. Some other states have had “comparable worth” or “pay equity” laws on the books, but Maine is the first to enact regulations giving such laws serious teeth. “We won”, said an official with the state AFL-CIO. “The business community has not awakened to the fact that this is going to cost them.” Disagreements are all but inevitable as to whether (say) secretaries’ work should be regarded as just as valuable as that of (say) truck drivers, and the Maine law will allow lawyers to march into such controversies with class action suits for unlimited damages — won’t that be fun? The state chamber of commerce did not oppose the enactment. (“Equal pay advocates tout new state rules”, AP/Bangor Daily News, April 4; “Maine Becomes First State Requiring Pay Equity”, Women’s ENews, April 3 (via Freedom News Daily); Maine Equal Justice Partners, 2000 Docket Report (scroll down to “Pay Equity”)).
SEE ALSO May 17, 2000; Diana Furchtgott-Roth, “Suicide Mission: The Union Push for Comporable Worth”, Capital Research Center Labor Watch, Dec. 1999; Lawrence W. Reed, “Comparable Worth or Incomparably Worthless?”, Mackinac Center, Sept. 6, 1994. The late Clarence Pendleton Jr., chairman of the U.S. Civil Rights Commission, called comparable worth “the looniest idea since Looney Tunes came on the screen” (Simpson’s Contemporary Quotations #519). (DURABLE LINK)
April 20-22 — “Lie-tery winners”. All sorts of basically decent people, from cops to grandmothers, would never think of shoplifting or forging checks but do seem to think it’s okay to lie in lawsuits. “Just ask anyone who has taken more than a handful of depositions or cross-examined witnesses at trial — especially witnesses in tort cases. … the oath has become virtually meaningless,” writes Kirkland & Ellis partner Michael Jones (“Lie-tery Winners”, National Law Journal, March 22).
April 18-19 — Mistletoe dangerous even when absent. LeRoy Crawford says his female boss at the New York Stock Exchange behaved seductively and made remarks such as “if there were mistletoe, I would give you a kiss,” when giving him a Christmas bottle of cologne. Things went from bad to worse, and he now wants $1 million in compensatory damages and $1 million for “special damages as a result of physical and mental injury”. (Peter Noel, “Sex on the floor”, Village Voice, April 11-17).
April 18-19 — Randomness of case assignments questioned. San Francisco assigns cases for pre-trial motions to one of two judges, and it seemed that the plaintiff’s firm of Wartnick, Chaber, Harowitz & Tigerman kept getting lucky by drawing the more favorable judge to hear its asbestos cases. Lucky, indeed: over the past two years, 94 percent of the firm’s cases were assigned even numbers, instead of the odd numbers that would have sent the cases to the other judge. (Dennis J. Opatrny, “Playing the Numbers”, The Recorder, April 9).
April 18-19 — “Guests sue inn for overbooking”. When five Massachusetts couples arrived at Vermont’s romantic Woodstock Inn for an investment club weekend last April, they found the inn had inadvertently overbooked its rooms, and three of the couples had to stay at a local B&B. The inn proprietors were terribly apologetic and treated all five couples to the weekend’s lodging for free, as well as giving them a free dinner. Nonetheless, four of the couples are suing for a sum “substantially in excess of $25,000” in a Boston court. (AP/Boston Globe, April 17).
April 18-19 — Tempest in an arsenic-laced teacup? President Bush deserves credit for standing up to demagogues by pulling back this bad regulation: Steve Chapman, “Who’s really poisoning our drinking water?”, Chicago Tribune, April 12; George Will, “The costs of moral exhibitionism”, Washington Post, April 15; Jason K. Burnett and Robert W. Hahn, Brookings/AEI Joint Center study, “EPA’s Arsenic Rule: The Benefits of the Standard Do Not Justify the Costs”, abstract, Jan. 2001; Mercatus Center (George Mason U.) Public Interest Comment series, Sept. 19, 2000; Michael Kinsley, “Bush is right on arsenic. Darn!”, Washington Post, April 13; Michael Y. Park, “Study: Arsenic Rule Would Have Increased Deaths”, FoxNews.com, April 17; Nick Schulz, “Poisoner-in-Chief Is Saving Lives”, American Spectator Online, April 17; Diane Rehm show transcript (National Public Radio), March 28.
April 17 — Reparations: take a number. National Journal columnist Stuart Taylor Jr. traces the link between demands for compensation for century-old evils such as slavery and colonization and legal battles over liability for decades-ago sales of products like lead paint and asbestos (“Paying Reparations for Ancient Wrongs Is Not Right”, The Atlantic/National Journal, April 11; our take, Reason, Nov. 2000). The group of lawyers mapping out slavery-reparations suits are scheduled to huddle on strategy today in Washington, and say they plan to name businesses as well as the U.S. government as defendants (Jamal E. Watson, “Lawyers plan suit for slavery reparations”, Boston Globe, April 13). The conservative magazine Insight has given uncritically positive coverage to demands for compensation over Japan’s World War II mistreatment of American servicemen, despite the clear laying to rest of such claims by postwar treaty. You’d think victims of the crimes of communism over its long reign would be even better placed to score positive ink in the conservative press, but we seem to hear little about them — not that we would want to load up the reparations bandwagon even further, you understand (Stephen Goode, “New book documents Japanese exploitation”, Insight, undated).
April 17 — A Pulitzer for Dorothy Rabinowitz. The Wall Street Journal editorialist, whose searing commentaries on dubious child-abuse prosecutions have helped expose some of the most glaring injustices to flow from sentimentalism and credulity in our legal system, snags one of this year’s Pulitzer Prizes for her commentaries on American society and culture (Yahoo Full Coverage — Pulitzers). OpinionJournal.com keeps an archive of her media criticism; her articles on abusive prosecution, when online at all, are found at far-flung corners of the web (“A Darkness in Massachusetts” -I-, -II-, -III- (RickRoss.com); more columns on Amirault case; “Through the Darkness” (the Grant Snowden case, forever linked with the name of Janet Reno) (DennisPrager.net); Wenatchee case -I-, -II-).
April 16 — “Woman settles hot pickle lawsuit with McDonald’s”. Or at least its local franchisee: “A woman who claimed she was permanently scarred by a hot McDonald’s hamburger pickle has settled her lawsuit against the restaurant chain. MAR Inc., which does business as McDonald’s in Knoxville, admitted no wrongdoing in the agreement signed by a judge Thursday. Other details of the settlement are to remain confidential. ” (see Oct. 10, 2000) (AP/CNN, April 13).
April 16 — New batch of reader letters. Our correspondents tell why the law makes it perilous to hire a home renovation contractor in New York, ask about buying T-shirts from us, wonder whether Indian-derived place names such as Wichita and Massachusetts are next up for abolition, lament American law’s resistance to the obvious fairness of the loser-pays principle, and hail a Supreme Court decision upholding employment arbitration.
April 16 — Big numbers. It is a truth universally acknowledged that if the injuries resulting from a transportation accident are sufficiently severe, a wealthy business must have been at fault. Teledyne Continental Motors of Mobile, Ala. has agreed to pay $27 million to settle a suit on behalf of survivors of five skydivers killed in the crash of a Cessna, though its attorney said the company’s oil tube design does not cause engine failure as the plaintiffs alleged (Joe Lambe, “$27 Million Settlement in Skydiving Plane Crash”, DropZone.com, March 16; “Poor Preflight Probably Killed Skydivers: NTSB”, Aero-News.Net, June 29, 2000). An Indiana appellate court has upheld a $55 million jury verdict against the Kroger Co. over a truck accident at a company terminal, rejecting the company’s contention that the award was excessive and in conflict with workers’ compensation laws (the injured man, a truck driver, worked for a wholly owned subsidiary of the large grocery chain). (Margaret Cronin Fisk, “Finding No Direct Employment Relationship, Indiana Appellate Court Upholds PI Award”, National Law Journal, March 28). A Los Angeles jury has just voted $55 million against General Tire, a unit of Germany’s Continental Gummi-Werke, over a “tread separation” accident (if you thought those were unique to Firestone, think again). (Myron Levin, Los Angeles Times, April 14; “Jury orders tire maker to pay $55 million”, AP/CNN, April 14). Among the plaintiff’s lawyers in the case was Brian Panish, famed for his 1999 feat in getting another L. A. jury to award $4.9 billion against GM, later reduced to $1.2 billion. And another well-known maker of replacement tires, Cooper Tire, got hammered the same week for $10 million in El Paso (“Jury OKs $10M Award Vs. Cooper Tire”, AP/FindLaw, April 13). Also see Margaret Cronin Fisk, “Two Tire Companies Punctured by Juries”, National Law Journal, April 24, with more details about both tire cases.
April 13-15 — It was the bar’s fault. “A 20-year-old Jamison man, who was shot last summer, says a Warminster bar is partially to blame for the incident. Had he not become drunk from alcohol consumption that night, Martin Joyce’s judgment would not have been impaired, he would not have approached an unknown man for change and he would not have been shot, alleges a suit filed in Montgomery County Court.” (John Corcoran, “Intoxication caused judgment error, suit claims”, Doylestown, Pa. Intelligencer-Record, April 11).
April 13-15 — Anti-Ritalin lawyers still acting out. Despite some early setbacks, tobacco-veteran lawyers including Richard Scruggs, John Coale and Marc Saperstein continue to seek megabucks damages against drugmaker Novartis (formerly Ciba-Geigy) over the widespread prescribing in schools of Ritalin, the drug meant to combat attention deficit disorder, hyperactivity, and related conditions. There’s a strong case to be made against the thoughtless overuse of this drug, but how characteristic of our litigation system that it proposes to take decisions about its use out of the hands of both medical professionals and parents, instead inviting the lawyers to shop around until they find a few sympathetic courts and a jury or two willing (effectively) to ban the drug through punitive damages. PBS “Frontline” covered the issue recently (“Medicating Kids“) and its website includes a section on the litigation (“ADHD Lawsuits“) which points out a noteworthy recent development: on March 8 of this year federal judge Rudi Brewster threw out a suit seeking class-action status on behalf of everyone in California who had used or bought Ritalin, and also “ruled that activities by defendants intended to advance the medical understanding, diagnosis and treatment of ADHD were free speech protected under California’s anti-SLAPP (Strategic Lawsuits Against Public Participation) statute.” This latter is significant because efforts by businesses to engage in medical promotion or policy defense of products, trade association activity etc. are now routinely sued over by trial lawyers in themselves (conspiracy! public brainwashing! tobacco all over again!) and anti-SLAPP statutes might prove useful in rebuffing such causes of action.
MORE: Sept. 18 & Sept. 22, 2000; Nancy Shute, “Pushing Pills on Kids?”, U.S. News, Oct. 2, 2000; Shankar Vedantam, “A symptom of the times? ADD, Ritalin focus of suits”, Philadelphia Inquirer, Dec. 11, 2000; Bob Seay, “Ten Questions for the Lawyers”, About.com ADD site, Sept. 16, 2000.
April 13-15 — “2000’s Ten Wackiest Employment Lawsuits”. Gerald Skoning of Chicago’s Seyfarth Shaw compiles an annual roundup of the most bizarre cases in employment law. Among this year’s highlights: a Minneapolis woman took a job in a sex-toy store and then filed a hostile-environment harassment lawsuit because of all the dirty talk she had to listen to; an Ohio court allowed a worker at a mental health facility to proceed with his reverse disability-discrimination claim that he had been singled out for mistreatment as the only employee at the facility without a mental disability; and a Boeing employee claimed that the company’s objection to his working in the nude was a failure to accommodate his religion, shamanism (“2000’s 10 Wackiest Employment Lawsuits”, National Law Journal, March 29).
April 12 — Zero-tolerance spiral. The WSJ‘s OpinionJournal.com “Best of the Web” feature has lately made it a special project to collect reports of zero tolerance excesses, which are fast mounting beyond our ability to record them. F’rinstance, there are the school officials in West Annapolis, Md., who have banned kids from playing tag during recess, citing the school’s “no-touching” policy (Kimberly Marselas, “City school bans students from playing tag”, Annapolis Capital, March 26); and the honor student given an in-school suspension in West Monroe, La., for drawing a GI Joe-style commando with canteen, knife and grenades (Emeri O’Brien, “3rd-grader suspended for drawing”, Monroe, La. News-Star, March 24; “Soldier drawing gets wide attention”, March 27). A 16-year-old student at Legacy High School in Broomfield, Colo. “may be charged with a felony after school officials found an unloaded BB gun in his car.” (Christine Reid, “Student may face felony charge over unloaded BB gun”, Scripps-Howard, April 8). And in the continuing search for ways to build character in the leaders of tomorrow, some favor snitchlines: “Cedar Rapids police are believed to be the first in Iowa to create a student hot line to take tips on illegal activity. Teens who call about classmates they believe to have alcohol, drugs or weapons on school property get $50 if the police recover anything.” (Kate Kompas, “Teen crime hot line offers cash”, Des Moines Register, April 5).
April 12 — “The Last Tycoon”. This Baltimore City Paper profile from last August, which we missed at the time, says contingency fees to Peter Angelos’s law firm topped $100 million for asbestos work on behalf of Bethlehem Steel workers alone, with more riches expected to flow in from fen-phen, lead paint and those supposedly deadly cellular phones. “When it comes to Baltimore’s politics and finances, it seems, almost nothing happens without Peter Angelos. … in 1999, 10 lawyers and lobbyists were registered with the State Ethics Commission on his behalf.” The minority leader of the state house describes the Orioles owner’s power in Annapolis as “absolutely magical” and “amazing … It’s all based on huge amounts of money flowing [from] Peter Angelos’ pocket and into the coffers of the Democratic Party.'” (Molly Rath, Baltimore City Paper, Aug. 16, 2000)(more).
April 11 — Lost his live client, had to substitute dead one instead. In St. Louis, where lots of dead people are registered to vote, “a dead man was listed as the chief plaintiff in a lawsuit filed on Election Day in November,” according to the L.A. Times. “He was having trouble voting, the suit said, due to long lines at his polling station. So he petitioned a judge — successfully — to keep city ballot boxes open late. … The lawyer who filed the suit explained the mix-up by saying he had intended the plaintiff to be Robert ‘Mark’ Odom, an aide to a Democratic candidate for Congress.” However, “Odom had voted, without a wait, by the time the suit was filed,” and the papers had been prepared with his name on them. But as California judge William W. Bedsworth suggests, this supposed explanation if anything makes the case more egregious: the lawyer “‘explained’ how he filed a suit on behalf of a dead person by saying that the plaintiff turned out not to have had his rights violated, and the only available person with the same name happened to be dead. And this caused not the batting of an eyelash in St. Louis. No immediate suspension, no call for disbarment, no investigation into how he got a judge to sign this thing”. (“Meet Me in St. Louis”, The Recorder, April 9).
April 11 — Update: “metric martyr” convicted. In the first such prosecution in Britain, greengrocer Steven Thoburn of Sunderland has been convicted of violating a 1985 compulsory metric system laws by selling bananas in pounds and ounces (see Jan. 22) (“‘Metric martyr’ convicted”, The Guardian, April 9; “Bananas” (editorial), Daily Telegraph (editorial), April 10; footrule.org, of which the late Jennifer Paterson (TV’s “Two Fat Ladies”) was an honorary member).
September 29-October 1 — Disabled rights roundup. The U.S. Supreme Court has agreed to decide whether the PGA golf tour must bend its rules to allow disabled golfer Casey Martin to ride in a golf cart (“U.S. High Court To Decide Case of Disabled Golfer”, Reuters/FindLaw, Sept. 26; see April 10, our May 1998 take). The government of Great Britain is considering legislation that would compel its armed forces to accept disabled recruits, and pressures are rising to accept handicapped military personnel in front-line as well as auxiliary positions, given the principle of nondiscrimination (Michael Smith, “Disabled want frontline jobs in ‘pc’ Services”, Daily Telegraph (London), Sept. 26; “Forces may have to admit disabled”, Aug. 21; UK Disability Discrimination Act). And a trend that has been well established under U.S. disabled rights law for some time — doctors’ having to hire sign-language translators at their own expense when a deaf patient wishes to call on them for a consultation — is exemplified by a consent decree negotiated by the office of New York Attorney General Eliot Spitzer, requiring an upstate doctors’ group to provide interpreters-on-demand for “all significant medical encounters” (“Spitzer Announces Agreement With Upstate Physician’s Practice To Provide Sign Language Interpreters for Deaf Patients”, press release, June 21; see also May 31).
September 29-October 1 — Annals of zero tolerance: Tweety bird chain. In suburban Atlanta, the Garrett Middle School has suspended 11-year-old Ashley Smith from sixth grade for two weeks on charges of breaking its zero-tolerance weapons policy by bringing a chain to school. It’s a 10-inch novelty chain that dangles from her Tweety bird wallet. “It’s only a little chain, and I don’t think it can really hurt anyone,” said Ashley, a “Tweety fan who publishes her own Web site devoted to the cartoon character.” Earlier, the ACLU successfully represented an Atlanta public school student who was charged with criminal weapons possession after she brought African tribal knives to school for a project (“Girl suspended for Tweety chain”, AP/Salon, Sept. 28; UPI/Virtual New York) (Ashley Smith’s guestbook) (update Oct. 4: school’s explanation).
September 29-October 1 — French crash, German victims, American payout levels? Air France has sued Continental Air Lines to recoup its costs from the July Concorde disaster in Paris that killed 113 people, charging that a strip of metal that fell off a Continental DC-10 caused the incident. The French airline has already offered to compensate survivor families, who are mostly German, but “German lawyers are pushing for a settlement in the United States, where courts order higher payouts.” (“Airline files Concorde suit”, Reuters/CNNfn, Sept. 27).
September 29-October 1 — “Denny’s fights back against false suits”. The restaurant chain, dogged by past charges of racial discrimination, releases more details on how it uses videotapes and other techniques to disprove dubious copycat claims (see Aug. 29-30). In Oakland, Calif., the lawyer son of John S. Harrison Sr. sued Denny’s claiming that a white couple had been served before his father though they had arrived later. “Mr. Harrison conceded he had been a customer for 20 years and ate at that Denny’s counter twice a day for 10 to 12 years with no problems in a store whose clientele was 50 percent black.” He had been happy with the meal and had left a tip. A federal magistrate threw out the suit and gave Denny’s legal fees. (Frank Murray, Washington Times, Sept. 25).
September 29-October 1 — “Supersize small claims”. Prairielaw columnist David A. Giacalone argues for reviving the nearly moribund institution of small claims court by boosting the threshold value of claims handled by such courts to $20,000, a change also endorsed by the HALT legal reform group. Thresholds around $3,000 are now common. Such a shift might relieve some of the docket pressure on regular courts while allowing ordinary citizens to vindicate more claims without lawyers’ assistance, a feature that may help explain why the bar shows little enthusiasm for the idea (undated, but appeared Aug.) (see also Oct. 3).
September 27-28 — Welcome UserFriendly.org readers. We’re picked as the link of the day by the website for the cartoon strip User Friendly, by Illiad.
September 27-28 — “Blind customers want to touch club lapdancers”. In East Sussex, England, the Brighton and Hove municipal council says it will consider a request by the Pussycats Club that its blind patrons be permitted to touch the exotic dancers as a form of handicap accommodation. The club says its vision-impaired customers appreciate the proximity of the lapdancers and their perfume but would get a better idea of what they looked like if they were allowed a hands-on experience, which is currently forbidden by the club’s license. (David Sapsted, Daily Telegraph (London), Sept. 26).
September 27-28 — Welcome Toronto Star readers. “One of my favourite Web sites is overlawyered.com, a collection of the most asinine stories from the admittedly ordinarily twisted universe of American law,” writes columnist Jason Brooks. He interviews our editor about a current proposal for Ontario to enact its own law emulating the Americans with Disabilities Act. No one seems to have any very clear idea what such a law would cost, but the Ontarians with Disabilities Act Committee says “the idea of a total cost figure misses the point.” Uh-oh…. (Jason Brooks, “Will new act go too far for the disabled?”, Toronto Star, Sept. 25).
September 27-28 — “Controversial drug makes a comeback”. A small Canadian firm, Duchesnay Inc., wants to reintroduce to the U.S. market Bendectin, the pregnancy-nausea drug driven off the market by mass litigation claiming that it caused birth defects. “Bendectin was the archetypical case of junk science scuttling a perfectly safe product,” Dr. Michael Greene, director of maternal-fetal medicine at Massachusetts General Hospital, tells New York Times science correspondent Gina Kolata. “It was a sad episode in American jurisprudence.” Although ultimately the manufacturer never paid damages, it spent $100 million in defense costs, says Prof. David Bernstein of George Mason University (Sept. 26)(reg).
September 27-28 — Stuart Taylor, Jr. on Gore and Vetogate. Another scathing, must-read column on trial lawyers and politics by the National Journal columnist, written before Janet Reno’s announcement last week that the Justice Department would not pursue an investigation of the Umphrey call sheet affair. Did you know that lawyers as a group have donated nearly ten times as much to the Democrats during this election cycle as the tobacco industry has given Republicans? (“Gore’s Shameless About Posing As A Populist”, National Journal/Atlantic Unbound, Sept. 26) .
September 27-28 — Microsoft wins one. The U.S. Supreme Court has turned down a Justice Department request that it hear the Microsoft case immediately, instead allowing the D.C. Circuit Court of Appeals to review the case, which is what the company preferred; past D.C. Circuit rulings suggest that it may be more sympathetic to Microsoft’s position than was the trial judge. (“High Court Defers to Microsoft”, AP/Wired News, Sept. 26; Declan McCullagh, “Microsoft gets what it wants”, Wired News, Sept. 26). And a number of courts have thrown out statewide consumer class actions against Microsoft based on the sale of Windows, although this doesn’t really come as much of a surprise in the case of states that bar indirect (end-user) antitrust claims, since cases filed in those courts were always long shots (Jonathan Groner, “The Cases Microsoft Is Winning”, Legal Times (Washington), Sept. 18).
September 27-28 — Bank error in your favor. Latest coins- found- under- the- sofa- cushions class action settlement: Wilmington, Del.-based credit card giant MBNA Corp. agrees to pay $3.57 each to current and former customers to settle claims that its ads were misleading in the early 1990s when they promoted a low interest rate for balances transferred from another card, but did not warn that the low rate did not apply to newly incurred charges. Lawyers for the plaintiff class, meanwhile, are set to pocket $1.3 million. Major credit card companies are frequent targets of class action litigation; Chase Manhattan and Providian Financial have recently settled such actions, and Citibank and Bank One/First USA face pending claims (Joseph N. DiStefano, “MBNA settles suit over card ads”, Philadelphia Inquirer, Sept. 26).
September 27-28 — Final innings for Kennewick Man. Score stands at archaeologists 0, multiculturalists 1, as Interior Secretary Bruce Babbitt announces that the 9,000-year-old skeleton found along the Columbia River four years ago will be given to local Indian tribes, who intend to bury the remains without allowing a complete examination. “If Babbitt’s ruling stands, the loss to science is beyond comprehension,” writes National Review Online‘s John Miller (“Kennewick Man’s last stand”, Sept. 26; see also Oct. 11, 1999).
September 25-26 — New data on state campaign contributions. Triallawyermoney.org, the project of the American Tort Reform Foundation that tracks plaintiff lawyers’ political contributions, has just expanded its coverage to include local elections in seven key states as well as federal elections. The states include Alabama, Florida, Illinois, Michigan, Ohio and Texas; there is also a link to similar data collected by the Civil Justice Association of California (launched Sept. 19 — “State Races“).
September 25-26 — “Skier to be tried for manslaughter in Colorado in fatal collision”. Although two county courts ruled that a reasonable person would not have expected skiing too fast to result in another person’s death, prosecutors in Denver have insisted on pressing a manslaughter rap against Chico, Calif. college student Nathan Hall, who in 1997, at the age of 18, headed down Vail Mountain and collided with 33-year-old Denverite Alan Cobb on the slope, killing him almost instantly. (AP/CNN, Sept. 11). Update Nov. 21: Hall convicted of criminally negligent homicide.
September 25-26 — Wal-Mart’s tobacco exposure. Through a little-known subsidiary named McLane Co., the Bentonville, Ark.-based retailer is the largest distributor of cigarettes to convenience stores, which makes it the biggest handler of that commodity aside from the tobacco companies themselves. Despite Wal-Mart’s deep pockets, plaintiff’s attorneys seem not to have noticed it yet. (Kelly Barron, “Smoking gun”, Forbes, Aug. 21) (see also July 7).
September 25-26 — A job offer for the judge. Following protests from defendants, Judge Edward Angeletti of Baltimore, Maryland Circuit Court removed himself from a series of asbestos-injury cases over which he was presiding and declared a mistrial after it was revealed that he had received a job offer from plaintiff’s attorney and political kingmaker Peter Angelos (see Oct. 19 and Dec. 9, 1999, March 15, 2000). According to AP/CNN, “Angelos has said that he made a ‘very substantial’ offer for Angeletti to head his office’s pursuit of lawsuits against lead paint manufacturers.” Angelos, who has become immensely wealthy through his handling of asbestos litigation, controls about three of every four asbestos cases in the Baltimore court. (“Job offer from lawyer leads judge to step down from asbestos trial”, AP/CNN, Aug. 1; “Judge removes himself from absbestos [sic] trials”, AP/Prince George’s County [Md.] Journal, Aug. 2)
September 25-26 — Kopel on zero-tolerance policies. Dave Kopel, Paul Gallant, & Joanne D. Eisen of the Independence Institute comment on the school zero-tolerance policies under which possession of an obvious toy gun — or sometimes just making a thumb-and-first-finger “gun” gesture — is considered grounds for punishment. (“Gunning for the Kiddies”, National Review Online, Sept. 22).
September 25-26 — Treaties rule. A federal judge in San Francisco has thrown out a lawsuit against Japanese defendants over World War II atrocities. In 1951 we signed a peace agreement with Japan which prohibited exactly these sorts of claims. Now we have to live up to our end of the treaty — period. (Louis Sahagun, “Suit on WWII Slave Labor in Japan Voided”, L.A. Times, Sept. 22; Reuters/FindLaw; see Sept. 20, 1999).
September 22-24 — “N.Y. Lawyer Charged in Immigrant Smuggling”. In a 44-count indictment, federal prosecutors on Wednesday charged the Manhattan lawyer who runs the country’s largest political asylum practice, Harvard Law-educated Robert Porges, with a wide range of offenses including concocting thousands of fictitious stories of persecution by which detained aliens could avoid deportation, advising smugglers how best to avoid detection by the Immigration and Naturalization Service, and “helping smugglers detain illegal immigrants until debts were paid.” According to prosecutors, paralegals wrote out longhand accounts of persecution, claiming of women clients, for example, that they had suffered forced abortions under China’s “one-child” policy, and then coached the immigrants on how to carry off the story convincingly. Porges is said to have “collected as much as $13 million in fees for helping to transport as many as 7,000 illegal immigrants from mainland China to the United States”. (Hanna Rosin and Christine Haughney, Washington Post, Sept. 21). Update Sept. 21, 2003: Porges and wife sentenced in 2002 to about eight years.
September 22-24 — RN’s illusions. Ralph Nader campaigns on the theme that anti-business advocates like himself are somehow kept from circulating their message or swaying policy. Is he really so disconnected from reality as to think that? (Sebastian Mallaby, “Victim of His Success”, Washington Post, Sept. 17). Before you get too enthusiastic about the Greens, suggests James Lileks, take a look at their platform: “They want your money, your job, your freedom and your car.” (“A look at Nader and his merry Greens”, San Francisco Examiner, July 14). And since some Nader groups have proposed the setting aside of a new .sucks domain to express discontent with powerful institutions (ibm.sucks, mcdonalds.sucks, etc.) some Seattle libertarians have turned the tables by founding the rudely named but inevitable Nadersucks.org, which bills itself as the largest collection of critical links about him online, outpacing the “Nader Skeleton Closet” feature at Realchange.org.
Other links of note from a Nader-watcher’s scrapbook: Doug Henwood, “1.75 cheers for Ralph”, Left Business Observer, Oct. 1996; discussion on LBO mailing list re RN finances, Sept. 9, 1998; RN denounces tort reform in campaign press release, VoteNader.org, Aug. 11; Robert Bryce, “Naturally Nader”, Austin Chronicle, April 7; Mike Allen, “Nader: The Little Guy’s Multimillionaire” (worth $3.8 million, heavily invested in tech stocks, still refuses to reveal income tax records), Washington Post, June 18; Paul West, “Corporate gadfly turns out to be rich”, Baltimore Sun, June 17; Michael Lewis, “Campaign Journal: The Normal Person of Tomorrow”, The New Republic, May 20, 1996.
September 22-24 — From our mail sack: hyperactive lawyers. Reader Scott Replogle, M.D., writes from Colorado: “I see (Sept. 18) that trial lawyer Richard Scruggs is suing psychiatrists and the makers of the drug Ritalin, alleging they conspired to ‘create’ a disease, Attention Deficit/Hyperactivity Disorder, and then overdiagnose it for monetary gain. Which raises the question: when can we sue the people who not too long ago ‘created’ the previously unknown disorders of ‘silicone disease’ and ‘human adjuvant disease’ during the breast-implant controversy, and conspired to overdiagnose those diseases for monetary gain? And does it matter that many of those people were trial lawyers?” (see also April 13, 2001)
September 21 — Missouri tobacco fees. Lawyers stand to make $100 million or more for representing the state of Missouri in the Medicaid-tobacco litigation and the state’s largest newspaper, the St. Louis Post-Dispatch, says that sum “is out of proportion to the work performed and the risk involved … troubling … grossly overpays the lawyers involved … creates an unholy alliance between the state and tobacco interests” It’s also “a political gravy train” since “the five law firms involved in the case donated a total of more than $500,000 in campaign contributions over the past eight years, mostly to Democrats”; a prominent Republican former judge and Democratic former mayor of St. Louis were also cut in. “An important issue of public policy — the lawyers’ fees — will be determined outside the public forum” given that a secret arbitration proceeding will be employed to set the fees. “…It is private money in the public trough. But that doesn’t make the sight of the lawyers lining up to feed any prettier.” (“All aboard the gravy train” (editorial), St. Louis Post-Dispatch, Sept. 17).
Brent Evans, a state senate candidate in Missouri, has posted extensive documentation on the circumstances surrounding state attorney general Jay Nixon’s hiring of outside lawyers to prosecute the suit. According to Evans, the lawyers’ campaign contributions of $561,000 included $139,000 for Nixon himself and $113,000 for Democratic Gov. Mel Carnahan (“The Tobacco Papers“; the lawyers; their generosity; the work they might have done to justify the fees; “Attorneys mum about how much they’re seeking” (fee request “confidential”), Jefferson City News-Tribune, April 26, 1999; Jack Cashill, “Warning: Tobacco Settlements May Endanger The Integrity of Your Elected Officials” (also discusses Kansas fees), Cashill.com, undated 1999; “Appeals court sides with Nixon on legal fees in tobacco settlement”, Jefferson City News-Tribune, May 31, 2000; James Baughn, The Cape Rock webzine (Cape Girardeau, Mo.), June).
Last year Missouri Digital News reported that Paul Wilson, lead attorney on the matter with AG Nixon’s office, “urged lawmakers to pass legislation that will protect the major tobacco companies from a market-share loss once the impact of the tobacco settlement sets in. Off-brand cigarette companies, those not participating in the settlement, could otherwise undercut the prices of the major tobacco companies. Missouri will keep getting its billions so long as the market share of the signatories does not dip below 95 percent. If it were to do so and Missouri had no off-brand tobacco law, explained Wilson, the terms of the settlement let the major tobacco companies stop paying.” (Anna Brutzman, “Legislators Bewildered By Settlement”, April 4, 1999). Update Oct. 5, 2003: Missouri Supreme Court refuses to entertain challenge to tobacco fees.
September 21 — Dangerous divorce opponents. It’s tough enough going through a divorce in any case, but you’d really better watch out if your spouse is a successful lawyer, according to the New York Post. Advice: try for a change of venue. (Laura Williams, “Attorneys’ Wives Court Disaster”, Sept. 20).
September 21 — Eastwood trial begins. Jurors will hear an Americans with Disabilities Act complaint against the actor’s Mission Ranch hotel in Carmel. For our coverage of the Eastwood case and related Congressional hearings, see May 18, March 7, Feb. 15 and Jan. 26. (“Eastwood to Jurors: ‘Make My Day'”, AP/Fox News, Sept. 20; Shannon Lafferty, “Eastwood in the Line of Fire,” The Recorder/CalLaw, Sept. 21).
September 20 — Victory in Chicago. A judge last week threw out the city of Chicago’s lawsuit against the gun industry. “In granting the industry’s motion to dismiss, Judge Stephen A. Schiller of Cook County Circuit Court suggested that the city had not shown wrongdoing by the individual defendants. He said that the city’s arguments would be better handled in a legislature than in a courtroom.” However, a West Coast judge denied a defense motion to dismiss a group of cases filed by San Francisco, Oakland, Los Angeles city and county, and other plaintiffs. Pending appeal, judges have now dismissed the suits filed by Chicago, Cincinnati, Bridgeport, and Miami, while declining to dismiss suits filed by Detroit, Atlanta, Boston, New Orleans, Cleveland, and the California cities. (Pam Belluck, “Chicago Gun Suit Fails, but California’s Proceeds”, New York Times, Sept. 16 (reg); “Judge dismisses Chicago suit against gun industry”, Reuters/CNN, Sept. 15; reaction from Illinois State Rifle Association). Plus: John Derbyshire gets radicalized on the tort reform issue when he goes out trying to buy ammunition on Long Island, and discovers that the courtroom assault on the industry is choking the local firearms dealers into oblivion with no legislation needed, simply by causing their liability insurance to dry up. (“First thing we do…”, National Review Online, Sept. 12).
September 20 — Disbarred, with an asterisk. Most clients probably assume that a lawyer thrown out of the profession is gone for good, but the Boston Globe finds that for years bar authorities have been quietly readmitting practitioners, including some whose original offenses were grave. Some of this leniency has been misplaced, since a number of the readmitted lawyers have gone on to commit new offenses against clients. (David Armstrong, “Special Report: Disbarred Mass. lawyers skirt discipline system”, Sept. 17, and sidebars: “Reinstatement process favors lawyers“, “Victims often missing from equation“.
September 20 — “Regulating Privacy: At What Cost?” Free-marketeers finally start organizing to resist the steamroller movement toward online-privacy laws, reports Declan McCullagh. Among new initiatives are a symposium held yesterday on Capitol Hill by George Mason U.’s Mercatus Center, a book entitled The Future of Financial Privacy forthcoming from the Competitive Enterprise Institute, and a privacy-issues website called Privacilla.org. (Wired.com, Sept. 19). And Reason Express a while back alerted us to a website by Jacob Palme in Sweden which recounts some of the less pleasant consequences of that nation’s pioneering (1973) law preventing the electronic gathering or dissemination of information about individuals without their consent. Palme says the law mostly went unenforced as regards web publishing, which is a good thing since if enforced literally it could have rendered unlawful much of the web in Sweden. The few instances that led to enforcement action, as related by Palme, suggest that unpopular and dissident opinions were among the most likely to draw complaints under the law. One man put up a webpage critical of a large Swedish bank, naming individual directors whom he believed had behaved in ethically irresponsible ways; he was prosecuted and fined for violating their privacy. In another case, an animal rights group was subject to legal action for posting a list of fur producers. In a third, a church volunteer was prosecuted for stating on a web page that one named church member had broken a leg and another was a member of the Social Democratic Party; health status and political affiliations are considered especially sensitive under the law. In a fourth case, dissident dog lovers got in privacy-law trouble for criticizing leading members of a dog society by name. The privacy laws were revised in 1998 and again in 1999, following much criticism, and as of June 2000, when Palme’s page was last revised, the highest Swedish court had not yet given its interpretation of the law (“Freedom of Speech, The EU Data Protection Directive and the Swedish Personal Data Act“; “The Swedish Personal Register Law“; “Swedish Attempts to Regulate the Internet“; official Data Inspection Board). (DURABLE LINK)
September 19 — Hollywood under fire: nose of the Camel? In what may take the prize for worst idea of the month, South Carolina Attorney General Charles Condon has proposed filing coordinated state lawsuits to make Hollywood the next tobacco. “Clearly we have here a virtual replay of what the tobacco industry did to our children. Instead of Joe Camel, Hollywood uses Eminem, South Park, Doom and Steven Segal [sic] to seduce children,” Condon wrote in a letter to the National Association of Attorneys General (Condon press release, Sept. 13; David Shuster, “South Carolina AG Threatens Suit Against Entertainment Industry”, Fox News, Sept. 15). It’s time the entertainment business cleaned up its act, writes Clarence Page of the Chicago Tribune, but that doesn’t mean Sens. McCain and Lieberman are right to “justify [an] end run around the 1st Amendment with a public-health argument like that which justifies the regulation of tobacco or liquor.” (“A World Apart: Eminem and Me”, Sept. 17). Owens Corning and Met Life use cartoon characters (the Pink Panther and Snoopy respectively) as advertising mascots, and you might jump to the conclusion that they were committing that dire sin, “marketing to children”, if you didn’t know that fiberglass insulation and insurance are products bought by adults, observes Illinois law prof Ronald Rotunda (“The FTC Report on Hollywood Entertainment“, Federalist Society, Free Speech and Election Law Working Group; FTC report; “Lieberman: Entertainment must police itself”, AP/Miami Herald, Sept. 13). Filmmaker John Waters doesn’t think much of the crusade: “The future CEOs of America are all sneaking into R-rated movies” (Rick Lyman, “Writers, Directors Fear Censorship, Tell Anger Over Violence Hearings”, New York Times Service/Chicago Tribune, Sept. 18). And plaintiff’s lawyers suing entertainment companies over school shootings, who’ve already gotten plenty of favorable ink in the conservative press (see July 22, 1999), are hoping the new report will invigorate their legal cause (Frank Murray, “FTC adds ammo to lawsuits for deaths”, Washington Times, Sept. 13).
September 19 —WSJ‘s Bartley on decline of American law. The establishment of the rule of law, replacing the whim of powerful rulers, was perhaps the supreme achievement of the West in the millennium just past, but the United States has grown careless about its legal inheritance, with systematic injustices mounting in both criminal and civil courtrooms. Last week’s call-sheet scandal illustrates the way “audacious and powerful interests” who have found ways to use the legal system to make their fortunes “have allied themselves with government and politicians.” (Robert Bartley, “The Law and Civilization’s Future”, Opinion Journal (Wall Street Journal), Sept. 18). “Justice Department investigators and prosecutors want to know if there were, in fact, any quid pro quos for the trial lawyers’ extraordinary generosity,” editorializes the San Diego Union-Tribune about the scandal. “With trial lawyers contributing almost 10 percent of all funds raised by the Gore-Lieberman campaign, that remains an urgent question. Voters have a right to some answers before Nov. 7.” (“Veto for sale?”, Sept. 16).
September 19 — Punitive damages for hatemongering? Washington Post‘s editorial page “is gutsy enough to have qualms about Morris Dees’ strategy of bankrupting hate groups with punitive tort damages,” observes Mickey Kaus at Kausfiles (“The Aryan Nations Verdict” (editorial), Washington Post, Sept. 16). “Many advocacy groups that engage in direct actions potentially expose themselves to tort liability…. That danger is compounded by the abusive system of punitive damages, which gives juries wide discretion to ruin people or companies financially in a fashion untethered to the scope of the harm they have done in the specific case at issue,” the Post comments. “That could not have happened to a more deserving bunch than Mr. [Richard] Butler and the Aryan Nations. But it’s worth pausing for a moment to wonder who’s next.”
September 18 — Scruggs v. Ritalin. Latest target for zillionaire tobacco lawyer and recent Time profilee Richard Scruggs: Novartis Pharmaceutical Corp., makers of the drug Ritalin, and the American Psychiatric Association. Scruggs’s firm accuses the two of conspiring to promote an overly broad diagnosis of Attention Deficit/Hyperactivity Disorder (ADHD), with the result that the drug is given to too many youngsters. “Novartis and the APA deny the allegations. In a statement, Novartis says the charges are ‘unfounded and preposterous.'” Some lawyers from the Castano consortium, which pursued tobacco litigation separate from Scruggs’s, are also joining him in the action. (“Lawsuits Accuse Ritalin Makers, APA”, AP/Yahoo, Sept. 15; Excite/Dow Jones; Toni Locy, “Fight over Ritalin is heading to court”, USA Today, Sept. 15) (see also Sept. 22-24 and April 13, 2001).
September 18 — White House pastry chef harassment suit. White House assistant pastry chef Franette McCulloch, 53, is suing her boss Roland Mesnier, claiming he “became hostile and rude when she spurned his advances, ‘screaming’ at her for refusing to have sex, excluding her from designing desserts and once assigning her to peel eight crates of kiwi.” Her suit also alleges that Bill Clinton, as the head of the White House, failed to establish a proper method for employees to bring harassment complaints, and demands $1 million each from Mesnier and Clinton. (AP/CNN, Sept. 13; Ellen Nakashima, “White House Chef Accuses Boss of Sexual Harassment”, Washington Post, Sept. 14). In 1997, the Equal Employment Opportunity Commission ruled against a discriminatory-firing claim by an employee of the White House chef’s office, but said he had been improperly retaliated against for filing his complaint. A former executive chef testified in a sworn deposition that year that the Clintons had paid him $37,000 to quit his post “because of my accent and the fact that I’m overweight.” (more).
September 18 — The teetery inkbottle. “Whenever the law and the facts were against him, Mr. Homans was not one to pound on the table. Instead, he would resort to what he called his ‘trial pen’, a big, old-fashioned device that he would pull out at a critical moment in a trial. On the stand would be the state’s star witness testifying that he had seen with his own eyes as Mr. Homans’s client pulled out a gun and pointed it directly at the bank teller’s head. But the jurors’ eyes would be on Mr. Homans, who, with trembling hand, would be filling the pen from a bottle of India ink perched so precariously, half over the edge of the defense table, that the jury would be caught up in the suspense of when it would fall.” — from an obituary, “William Homans, 75, Dies; Boston Civil Rights Lawyer”, by the late Robert McG. Thomas, Jr., New York Times, February 13, 1997 (fee-based archives, search on “William Homans”).
September 18 — That’ll be $2 trillion, please. A former resident has filed three lawsuits against the town of Rocky River, Ohio, “claiming everything from false arrest to injury of reputation,” and demanding $2 trillion. The town isn’t amused and is countersuing her, saying it’s had to expend money to defend itself. (Sarah Treffinger, “Rocky River sues woman who sued for trillions”, Cleveland Plain Dealer, Sept. 13).
September 15-17 — Day Two of Vetogate. George W. Bush in a California speech says the new call-sheet revelations are evidence that Gore “may have crossed a serious line … The appearance is really disturbing”, Janet Reno refuses to talk about the status of the investigation, the New York Times Washington bureau frets about being (just barely) webscooped by Time.com on the story, and Gore campaign spokesman Chris Lehane curiously describes the sensational disclosures as “recycled”, though no one in the press remembers seeing them before now (CNN; Drudge special; Yahoo/Reuters; Wash. Times).
September 15-17 — Who caught the tire problem? “Who provided the information that instigated the current recall? Who acted to protect the consumer? None other than ‘greedy’, profit-seeking State Farm Insurance Company. Eager to earn ever higher profits by reducing injury claims and lawsuits, State Farm’s statistical bureau noticed an increase in claims related to Firestone tires and passed the information along to the NHTSA which had been asleep at the switch. [See Devon Spurgeon, “State Farm researcher’s sleuthing helped prompt Firestone recall’, Wall Street Journal , Sept. 1]. The profit seeking of a big, bad, private insurance company may help save hundreds of lives.” (James Ostrowski, “The Tire Fiasco”, Ludwig von Mises Institute, Sept. 8).
In the New York Times Sept. 11, Keith Bradsher reports that by the end of 1998 trial lawyers “had already sued Firestone, and sometimes Ford as well, in cases involving 22 deaths and 69 serious injuries”. However, few of these cases had come to the attention of the National Highway Traffic Safety Administration; until recently NHTSA had received very few complaints, and none of fatalities. In fact, Bradsher reports, trial lawyers were pursuing a conscious policy of not reporting tire incidents to the agency, apparently because of tactical concerns — if the agency learned about such cases too early and in too small a number, it might do a perfunctory investigation and miss the pattern of defectiveness, and then the lawyers would have more trouble winning their cases. This strikes us as a fairly damning indictment to be leveling against the trial lawyers — they flout the public interest in learning crucial safety information, just in order to angle for monetary advantage? Isn’t that what Firestone is accused of doing? — but Bradsher quotes Ralph Hoar, a well-known plaintiff’s-side consultant in auto-design cases who provided the numerical tabulation cited at the beginning of this paragraph, as cheerily portraying the lawyers as just doin’ their job, saying they have to concern themselves with their clients’ best interests, not anyone else’s.
Meanwhile, Ford Motor had been named in a few suits but “paid little attention, because automakers routinely face thousands of lawsuits after crashes.” In other words, the background level of litigation against a company of that size is so high that it’s hard to notice patterns that do turn out to be meaningful (Keith Bradsher, “Documents Portray Tire Debacle as a Story of Lost Opportunities”, New York Times, Sept. 11 (reg)). (DURABLE LINK)
September 15-17 — Ciresi bested in Senate bid. Michael Ciresi, the trial lawyer who sought to parlay his representation of the state of Minnesota in the tobacco litigation into a seat in the U.S. Senate, has lost the Democratic nomination to department store heir Mark Dayton by a margin of 41 to 23 percent, with other candidates dividing the rest. (Dan Bernard, “Dayton Grabs DFL Nomination”, WCCO/Channel 4000, Sept. 13; St. Paul Pioneer Press; Minneapolis Star-Tribune).
September 15-17 — Cash return sought by murder-for-hire convict. “A criminal defense attorney who paid an undercover agent $11,000 in a failed murder-for-hire plot is asking the government to return the money. Frederick Ford, 48, who is serving an eight-year prison term for planning to kill two former clients he thought could implicate him in a kidnap plot, is seeking the return of the money he admitted he gave to a U.S. Department of Labor agent last year.” (“Convicted attorney seeks return of murder-for-hire retainer”, AP/CNN, Sept. 13; Shelley Murphy, “Hit man hirer wants money back”, Boston Globe, Sept. 13).
September 14 — “I know [you] will give $100K when the president vetoes tort reform, but we really need it now.” The New York Times reports in today’s editions that Justice Department campaign finance investigators have launched a preliminary probe into documents that have surfaced from the Clinton/Gore 1996 fundraising operation, including a “call sheet” prepared for Vice President Gore regarding Beaumont, Texas lawyer Walter Umphrey, a major Democratic benefactor who shared in Texas’s $3.3 billion tobacco contingency fee and is well known to readers of this space. The sheet describes Umphrey as “closely following tort reform” and suggests asking him for $100,000 to finance Democratic Party TV commercials. The White House claims that Gore did not make the call, but two weeks later a staffer for then-Democratic National Committee chairman Donald Fowler prepared a call sheet reading as follows: “Sorry you missed the vice president. I know [sic] will give $100K whn [sic] the president vetos [sic] tort reform, but we really need it now. Please send ASAP if possible.” DNC officials propose that the “missed” might have referred to the two men not connecting at an in-person event; Fowler disclaims any memory of talking with Umphrey about campaign donations and says he would never have used the language on the call sheet. According to the Times, “Trevor Potter, a former chairman of the Federal Election Commission, called the call sheet’s language ‘extraordinarily ill-advised,’ saying prosecutors would probably be investigating whether the solicitation violated either a bribery statute or a law prohibiting ‘illegal gratuities,’ a ‘gift’ given after an elected official takes a public action.”
The Washington Post reports that Umphrey says he doesn’t recall “any of that” and otherwise declines comment, while Payne was talking to the Times only through her lawyer. And attorney Michael Tigar, who represents Umphrey and the rest of the Big Five Texas tobacco lawyers, issued this small gem of legalistically worded denial: “Tying campaign contributions to legislative or executive action has never been illegal in the United States unless there is proof that the public official extorts the money by threatening to give or withhold action based on the contributions,” he said; moreover, his clients, including Mr. Umphrey, “have repeatedly been asked in many forums whether they have ever given money to a candidate or officials as a quid-pro-quo for official action, and they have repeatedly said under oath that they have never done so.” The Times account adds considerable background on the epic pace of Clinton/Gore fundraising among Texas plaintiff’s lawyers of late, including a little-reported fundraiser thrown for Hillary Rodham Clinton’s Senate campaign by Big Five stalwart John Eddie Williams of Houston. (Don Van Natta Jr. with Richard A. Oppel Jr., “Memo Linking Political Donation and Veto Spurs Federal Inquiry”, New York Times, Sept. 14 (reg); Susan Schmidt, “1995 Documents Appear To Link Lawyer’s Contribution To Veto”, Washington Post, Sept. 14; more on Umphrey and the Big Five: Sept. 1, May 22; more on trial lawyers’ political clout). More breaking coverage (via Drudge): Time, Fox News, AP. (DURABLE LINK)
September 13-14 — “Violent media is good for kids”. Good kids, as well as bad ones, are naturally fascinated with violence, catastrophe and retribution, and letting them explore these matters in the relatively safe territory of the printed page and popular entertainment is part of the process by which they learn how to fit themselves into a frightening world, argues cartoonist Gerard Jones, in an excerpt from a book due out next year from Basic with co-author Melanie Moore (“Reality Check”, Mother Jones, June 28; Reason magazine, “The Kids Are All Right“, “Breaking Issues”; Christopher Stern, “Violent Material Marketed To Youth”, Washington Post, Aug. 27; Mike Allen and Ellen Nakashima, “Clinton, Gore Hit Hollywood Marketing”, Washington Post, Sept. 12).
September 13-14 — Gregoire’s home front. Washington state attorney general Christine Gregoire gained a high national profile jetting around the country to take a leading role in the tobacco-Medicaid affair and other big-case AG litigation, and followed up by assuming the presidency of the National Association of Attorneys General (see July 17). Now it may be time to wonder whether she was keeping enough of an eye back home on the unglamorous routine of the AG’s office, which plays a vital role in protecting the state’s legal interests. In March a Pierce County jury awarded the largest verdict ever against the state, $17.8 million, on behalf of three developmentally disabled men whose families said they were abused in a state-supported home. Gregoire’s office announced plans to appeal but, embarrassingly, proceeded to lose the state’s right to do so by missing a filing deadline. With interest, the total bill has now mounted to $18.7 million. (Eric Nalder and Mike Carter, “State won’t give up bid to appeal $17.8 million verdict”, Seattle Times, Sept. 12; Eric Nalder, “No excuse for missed appeal, court says”, Seattle Times, Aug. 22; see also update Nov. 30). The Capital Research Center has issued a new report critical of recent attorney general activism, by Ron Nehring of Americans for Tax Reform (“National Association of Attorneys General: Opening the Door to a New Era of Regulation Through Litigation”, Organization Trends (CRC), Sept.)
September 13-14 — Prescription: 24-7 monitoring. Adding to Evergreen State taxpayers’ legal woes, a Pierce County, Wash. jury Sept. 1 ordered the state government to pay $22 million to survivors of a driver killed in an auto accident by a man who was at the time serving the community-supervision portion of a sentence for third-degree assault. The verdict broke an earlier $17.8 million record for lawsuits against the state, set in March by the same plaintiff’s attorney, Jack Connelly (see above item). Gov. Gary Locke vowed to appeal the verdict, saying if upheld it could make the entire enterprise of community supervision unworkable. “This man was convicted of … third-degree assault connected with a domestic dispute,” he said. “Imposing liability for his involvement in an auto accident extends public liability too far.” A Locke aide questioned whether the state could monitor the 55,000 persons on community supervision adequately to prevent any of them from being a menace on the highway. One of the alternatives to risking failure-to-supervise liability — keeping the 55,000 locked up — would apparently be okay with lawyer Connelly, who said, “If you’re not even going to try to do your job, then don’t put these guys on community supervision. Put them in jail.” (Eli Sanders, “Family awarded $22.4 million in wrongful death lawsuit against state”, Seattle Times, Sept. 2). See also Chris Solomon, “Cities leery of new probation rules”, Seattle Times, July 11 (local governments fear being financially wiped out by Washington Supreme Court ruling allowing negligence lawsuits against municipalities over crimes committed by probationers).
September 13-14 — More bank spying? Despite strongly negative public reaction to withdrawn “Know Your Customer” regulations that would have accelerated banks’ sharing of customer “profiles” with law enforcement, legislators like Rep. James Leach (R-Iowa) are back with proposals that raise similar civil liberties concerns (Scott C. Rayder, “The Counter-Money Laundering Act: An Attack on Privacy and Civil Liberties”, Heritage Foundation Executive Memorandum, Aug. 31; our take on the last round).
September 13-14 — Judges’ words, copyrighted. Officials in the California judiciary would like to revamp the instructions that judges give juries before trial deliberations, in hopes of making them clearer and more understandable, but have run into an unexpected problem. The Los Angeles County courts turn out to hold copyright in the most widely used current instructions and collect royalties when other California courts use them, which have generated $2.5 million for the county’s use over the past decade. “‘When we first began this effort three years ago, all of us just assumed that we would take [Los Angeles instructions] and improve on them,’ said Associate Justice James D. Ward of the state Court of Appeal in Riverside, vice chairman of the task force. ‘Then they announced to us that they owned them.'” The L.A. courts have held back from cooperating in the statewide revision efforts, which if successful would result in a set of instructions that courts could use for free. (Caitlin Liu, “Say What, Your Honor?”, Los Angeles Times, Sept. 7).
September 12 — Goodbye to gaming volunteers? Online multiplayer gaming has grown to be a big Internet institution in no small part because large numbers of unpaid enthusiasts join in on a volunteer basis to suggest and beta-test new features, run discussion boards and perform countless other services. “But maybe not for long. On Monday, August 28 … Origin Systems Inc. (OSI) [makers of Ultima Online, one of the leading fantasy role-playing games], announced the termination of free game account privileges for hundreds of community volunteers…. While company representatives have not said so outright, it appears the move to eliminate what amounted to a $10 a month gratuity for volunteers is related to a recent New York class action lawsuit, brought by former volunteers at America Online (AOL)” (see Sept. 7, 1999). The class action lawyers in that case are charging that because AOL benefits from the content devised by its volunteers, and has given them at least nominal compensation in the form of free services and the like, it is therefore obliged to keep track of how much time they put into volunteering and pay them at least the minimum wage. If the lawyers succeed in their efforts, online community providers could find themselves facing large retroactive wage bills. “Origin is just the first game company to move to protect itself legally by removing any perks that could be seen as differentiating its volunteers from all the other players. The major subscription-based role-playing services may soon follow suit. While the short-term effects may be limited (some volunteers may quit, but could be replaced), the long-term future of volunteer work on online releases seems doubtful all of a sudden.” (Bruce Rolston, “The End of the Smurfs?”, Adrenaline Vault, Sept. 1).
September 12 — Curious feature of lawyer’s retainer. Texas trial lawyers are in a flutter over a Waco case in which an appeals court ruled that a client family in an industrial accident case was within its rights to withdraw from a contingent-fee legal contract it had signed. The agreement the lawyer had gotten the family to sign included a curious feature: a provision entitling him to settle the case without their consent. Such a provision, the court ruled, “clearly violates” the Texas professional code for lawyers, making the entire contract voidable. The lawyer, J.W. Stringer, plans motions for rehearing and appeal. (Jenny Burg, “Opinion Has Lawyers Reviewing Contingent-Fee Contracts”, Texas Lawyer, Aug. 21).
September 12 — This little piggy got taken to court. More pig farmers are facing legal action as outlying towns change “from rural, mind-your- own-business farm communities to residential, what’s-that-smell, suburban neighborhoods,” according to a Cleveland Plain Dealer report. Five residents of Medina County, Ohio, including a truck driver and two auto mechanics, have been sent to jail this summer for refusing to clean up pig living arrangements on their properties (Stephen Hudak, “Proud Pig Man’s smelly pork farm lands him in poke”, Sept. 7) (via Romenesko’s Obscure Store) And a Marlin County, Florida pig farmer sued by an adjoining golf course has put up a website which solicits moral support and legal defense contributions, as well as purchases of the squiggle-tailed offenders (Pigfarmer.com) (more on pig litigation: Oct. 4, 1999).
September 11 — “Feeding Frenzy Over Firestone”. “Lawyers all over the country see opportunity in the escalating legal, commercial and public relations disaster for Ford and Firestone.” (Bob Van Voris and Matt Fleischer, National Law Journal, Sept. 5; Yahoo Full Coverage).
September 11 — Harassment law roundup. At an Alcoa plant in North Carolina, one of the black complainants in a race discrimination suit went out to the parking lot, made a list of all the workers’ vehicles with Confederate flag stickers on them, and filed this as evidence of “hostile racial environment” in the case. The company promptly banned employees from having such stickers on their cars, a ban it insists had absolutely nothing to do with the lawsuit (Steve Chapman, “Trouble in Mind: Is the First Amendment Void in the Workplace?” Chicago Tribune, Aug. 24). In an excerpt from his book The Unwanted Gaze: The Destruction of Privacy in America, New Republic legal correspondent Jeff Rosen urges courts to reconsider the “hostile environment” analysis that has become an accepted part of harassment law: “A jurisprudence originally designed to protect privacy and dignity is inadvertently invading privacy and dignity” (“Fall of Private Man”,New Republic, June 12; more on book). Clarence Thomas, alone among the nine Justices of the Supreme Court, wanted to tackle the “troubling First Amendment issues” raised by a court’s injunction against workers’ use of racial epithets on the job at an Avis Rent-a-Car franchise; a California court had ordered the drawing up of a list of words that employees were to be forbidden to use in conversation with each other, whether anyone present found the words objectionable or not (Tony Mauro, Freedom Forum, May 23). And early this year it was reported that an “affirmative action officer in Falmouth, Massachusetts — whose job it was to enforce the town’s sexual harassment policy — has been fired for sexually harassing a town employee. The official, Jayme Dias, was in charge of promoting and enforcing fairness in hiring and employment practices.” (Monster.com, “Week in Work”, Jan. 31).
September 11 — “Mother sues over lack of ice time for goalie son”. In Rimouski, Quebec, “Hélène Canuel is seeking $1,000 in damages from the Rimouski Minor Hockey Association because her son, David, was denied the right to play in a critical game during a hockey tournament last December.” David is 14 years old. (Arpon Basu, Montreal Gazette/National Post, Aug. 24).
May 18-21 — “A Smith & Wesson FAQ”. An end run around democratic governance, an assault on gun buyers‘ Second Amendment liberties, a textbook abuse of the power to litigate: the Clinton Administration’s pact with Smith & Wesson is all this and more. When this website’s editor looked into the agreement’s details, he found them if anything worse than he’d imagined — for one thing, they could actually increase the number of people hurt because of gun malfunctions. (Walter Olson, “A Smith & Wesson FAQ”, Reason, June; see also David Kopel, “Smith & Wesson’s Faustian Bargain”, National Review Online, March 20, and “Smart Cops Saying ‘No'”, April 19).
May 18-21 — On the Hill: Clint Eastwood vs. ADA filing mills. The Hollywood actor and filmmaker got interested in the phenomenon of lawsuit mills that exploit the Americans with Disabilities Act (see our March 7, Feb. 15, Jan. 26-27 commentaries) when he was hit with a complaint that some doors and bathrooms at his historic, 32-room Mission Ranch Hotel and restaurant in Carmel, Calif. weren’t accessible enough; there followed demands from the opposing side’s lawyer that he hand over more than just a fistful of dollars — $577,000, the total came to — in fees for legal work allegedly performed on the case. “It’s a racket”, opines Eastwood. “The typical thing is to get someone who is disabled in collusion with sleazebag lawyers, and they file suits.” (Jim VandeHei, “Clint Eastwood Saddles Up for Disability-Act Showdown”, Wall Street Journal, May 9 — online subscribers only). The “Dirty Harry” star is slated to appear as the lead witness in a hearing on the bill proposed by Rep. Mark Foley (R-Fla.) to require that defendants be given a chance to fix problems before lawyers can start running the meter on fee-shift entitlements; the hearing begins at 10 a.m. Thursday, May 18 and the House provides a live audio link (follow House Judiciary schedule to live audio link, Constitution subcommittee; full witness list). The National Federation of Independent Business, Chamber of Commerce of the U.S., National Restaurant Association and International Council of Shopping Centers all like the Foley idea. Eastwood told the WSJ he isn’t quarreling with the ADA itself, and the proposed legislation would affect only future cases and not the one against him; but “I just think for the benefit of everybody, they should cut out this racket because these are morally corrupt people who are doing this.”
May 18-21 — “Dialectizer shut down”. “Another fun, interesting and innovative online resource goes the way of corporate ignorance — due to threats of legal action, the author of the dialectizer, a Web page that dynamically translates another Web page’s text into an alternate ‘dialect’ such as ‘redneck’ or ‘Swedish Chef’ and displays the result, has packed up his dialectizer and gone home”, writes poster “endisnigh” on Slashdot (May 17). (Signoff notice and subsequent reconsideration, Rinkworks.com site). Update: it’s back up now — see Aug. 16-17.
May 18-21 — Dusting ’em off. A trend in the making? Complainants in a number of recent cases have succeeded in reviving enforcement of public-morality laws that had long gone unheeded but never actually been stricken from the books. In Utah, Candi Vessel successfully sued her cheatin’ husband’s girlfriend and got a $500,000 award against the little homewrecker (as she no doubt views her) under the old legal theory of “alienation of affection”, not much heard of these last forty or more years. (“Spouse Stealer Pays Price: Wife Wins Case Against Mistress for Breaking Up Marriage”, ABC News, April 27). Authorities in two rural Michigan counties have recently pressed criminal charges against men who used bad language in public, under an old statute which provides that “any person who shall use any indecent, immoral, obscene, vulgar or insulting language in the presence or hearing of any woman or child shall be guilty of a misdemeanor.” (“2nd man hit with anti-cussing statute”, AP/Detroit Free Press, April 27) (same article on Freedom Forum). And Richard Pitcher and Kimberly Henry of Peralta, N.M., “have been formally charged by Pitcher’s ex-wife under the state’s cohabitation law, which prohibits unwed people from living together as ‘man and wife'”. (Guillermo Contreras, “Couple charged with cohabitation”, Albuquerque Journal, March 11) (update: see May 8, 2001 for newer example).
May 18-21 — Campaign regulation vs. free speech. The state of Kentucky’s Registry of Election Finance has ruled that newspapers have a constitutional right to editorialize on behalf of candidates of their choice, rejecting a complaint that characterized such endorsements as “corporate contributions” made by the newspaper proprietors. (“Kentucky election agency: Newspaper editorials aren’t contributions”, AP/Freedom Forum, May 10). A general hail of dead cats has greeted the Congressional Democrats’ lawsuit charging House Majority Whip Tom DeLay with “racketeering” over campaign fundraising practices, with Democratic operative Paul Begala calling the suit “wrong, ethically, legally and politically.” (David Horowitz, “March of the Racketeers”, Salon, May 15; Michael Kelly, “Hammering DeLay”, Washington Post, May 10). And Mickey Kaus, on his recommended Kausfiles.com website, spells out in words of one syllable to pundit Elizabeth Drew why proposed bans on privately sponsored “issue ads” run smack into the Constitution’s guarantee of free speech (“Drew’s Cluelessness: Please don’t let her anywhere near the First Amendment!”, May 7).
May 18-21 — Gotham lawyers upset at efficient jury selection. A few years ago, led by its Chief Justice Judith Kaye, the state of New York began taking long-overdue steps to reform its notorious jury selection system, under which lawyers had often been permitted to browbeat and grill helpless juror-candidates for days at a time in search of the most favorably disposed (not to say pliable) among them. The changes, which bring the Empire State more into line with the practice around the rest of the country, have markedly reduced the time jurors and others must spend on empanelment. So who’s unhappy? The state’s bar association, naturally, which opposed reform in the first place, and now complains that “attorneys are feeling increasingly constrained by time limits and other restrictions”. A survey it conducted “suggests that many lawyers feel that new practices are cramping their style.” Yes, that was the idea (John Caher, “NYS Bar Favors More Voir Dire Leeway”, New York Law Journal, April 12).
May 17 — Not my fault, I. In 1990 Debora MacNamara of Haileybury, Ontario smothered her nine-year-old daughter Shauna as she slept. Found not guilty by reason of insanity, she spent five years in mental institutions before being released. Now she’s suing two psychiatrists and her family doctor for upwards of $20 million, saying they should have prevented her from doing it. The docs say she was “an uncooperative, recalcitrant patient who didn’t take her medication as prescribed, often cancelled appointments, wouldn’t let those treating her share critical medical information and either minimized or lied about both her symptoms and state of mind.” (Christie Blatchford, “Woman sues doctors for not stopping her from killing”, National Post, May 16, link now dead)).
May 17 — Not my fault, II. “Fourteen years after accidentally shooting himself in the hand, 19-year-old Willie K. Wilson of Pontiac is pointing the finger at his father and Smith & Wesson, suing both last week for at least $25,000 in Oakland County Circuit Court.” His lawyer explains that Willie isn’t actually angry at his pa but is just going after the homeowners’ insurance money. Hey, who could object in that case? (Joel Kurth, “Son sues father, Smith & Wesson”, Detroit News, May 16).
May 17 — Comparable worth: it’s back. This time they’re calling it “pay equity”, but a new study by economist Anita Hattiangadi and attorney Amy Habib for the Employment Policy Foundation finds no evidence that the much-discussed pay gap between the sexes owes anything to employer bias, as distinct from women’s individual choices to redirect energy toward home pursuits during childbearing years (EPF top page; “A Closer Look at Comparable Worth” (PDF)). Plus: the foundation’s comments on White House pay equity report (PDF); background on comparable worth; and writings by Diana Furchtgott-Roth of the American Enterprise Institute, “Still Hyping the Phony Pay Gap”, AEI “On the Issues”, March; Roger Clegg (“Comparable Worth: The Bad Idea That Will Not Die”, National Legal Center for the Public Interest, “Briefly…” series, August 1999 (PDF); and the Chicago Tribune‘s Steve Chapman (“Clinton’s Phony Fight for ‘Pay Equity’, Feb. 24).
May 17 — Update: judge frowns on Philly’s Mr. Civility. Following up on our March 13 commentary, federal judge Herbert J. Hutton has imposed sanctions on attorney Marvin Barish, including an as yet uncalculated fine and disqualification in the case, over an incident during a trial recess in which Barish threatened to kill the opposing lawyer with his bare hands and repeatedly called him a “fat pig”. Barish’s attorney, James Beasley (apparently the same one for whom Temple U.’s law school was renamed after a large donation), said if anyone merited sanctions it was the opposing counsel, representing Amtrak, for having engaged in legal maneuvers that provoked his client to the outburst; Barish is “one of the city’s most successful lawyers handling Federal Employers Liability Act cases”. (Shannon P. Duffy, “Judge Hits Lawyer with Fine Over Alleged Threat”, Legal Intelligencer (Philadelphia), May 2).
May 17 — Disabled vs. disabled. Strobe-light-equipped fire alarms — a great idea for helping the deaf, no? A sweeping new mandate to that effect is pending before the federal government’s Access Board, which would affect workplaces, hospitals, and motel rooms, among other places. All of which horrifies many members of another category of disabled Americans, namely those with photosensitive epilepsy and other seizure disorders: In a recent survey, 21 percent of epileptics said flashing lights set off seizures for them. “Should a seizure be caused by stroboscopic alarms during an actual fire emergency, that person would be incapacitated, leading to even more danger both from the seizure and from the emergency itself.” And then there are all the false alarms. … (Epilepsy Foundation, “Legislative Alert“, Capitol Advantage Legislative Advocacy Center; Access Board, Notice of Proposed Rulemaking, relevant section (see s. 702.3)).
May 16 — Federal commerce power genuinely limited, Supreme Court rules. Big win for federalists at the high court as the Justices rule 5-4 to strike down the right-to-sue provision of the Violence Against Women Act on the grounds that the Constitution does not empower Washington to muscle into any area of police power it pleases simply by finding that crime affects interstate commerce. (Laurie Asseo, “High Court: Prosecution of Rapists Up To States”, AP/Chicago Tribune, May 15, no longer online; U.S. v. Morrison, decision (Cornell); Center for Individual Rights; Anita Blair (Independent Women’s Forum), Investors Business Daily, reprinted Feb. 4).
May 16 — Deflated. After suing automakers up one side of the street for the sin of not installing airbags earlier, trial lawyers are now suing them down the other over the injuries the bags occasionally inflict on children and small-framed adults. Last month Ford got hit with a $20 million verdict in a case where an infant was paralyzed by a Mustang’s airbag, but last week a Detroit jury declined to find liability against DaimlerChrysler in a case where an airbag detonation killed 7-year-old Alison Sanders after her father ran a red light and broadsided another vehicle. (“Jurors clear DaimlerChrysler in 1995 air-bag lawsuit case”, Detroit Free Press, May 11, link now dead; Bill Vlasic and Dina ElBoghdady, “Air bag suits unlikely to stop”, Detroit News, May 12).
Who was it that spread the original image of air bags as pillowy, child-friendly devices, the right solution for all passengers in all circumstances? Lawyers now wish to blame Detroit, but Sam Kazman of the Competitive Enterprise Institute quotes the remarks of longtime Ralph Nader associate Joan Claybrook, who headed the National Highway Traffic Safety Administration during the Carter-era rulemaking: “Air bags work beautifully,” she declared, “and they work automatically and…that gives you more freedom than being forced to wear a seat belt.” (Letting people think an airbag might relieve them of the need to buckle up is now, of course, seen as horrifically bad safety advice.) Moreover, quoth Claybrook, the devices “fit all different sizes and types of people, from little children up to…very large males.” (“Only Smart Air Bag Mandate is No Mandate at All”, CEI Update, March 2).
Even more striking, CEI’s Kazman dug up this photo of Ralph Nader, who long flayed manufacturers for their delay in embracing the devices, using an adorable moppet as an emotional prop. Sam says the photo is from a 1977 press conference; he thinks it would make a lovely display in Nader’s planned museum of product liability law in Winsted, Connecticut. [DURABLE LINK]
MORE SOURCES: Bill Vlasic and Dina ElBoghdady, “Dead girl’s dad fights air bags”, Detroit News, March 29; Janet L. Fix, “Father’s heartbreak fueled lawsuit after 1995 accident”, Detroit Free Press, April 5; “The Deployment of Car Manufacturers Into a Sea of Product Liability? Recharacterizing Preemption as a Federal Regulatory Compliance Defense in Airbag Litigation”, Note (Dana P. Babb), Washington U. Law Quarterly, Winter 1997; Scott Memmer, “Airbag Safety”, Edmunds.com, undated web feature; Michael Fumento, “Paper Scares Parents for Politics and Profit”, 1998, on Fumento.com website.
May 16 — “Clinton’s law license”. “The Arkansas Supreme Court should take away Clinton’s law license because he lied under oath,” declares the editorially middle-of-the-road Seattle Times. “It’s unlikely that Clinton will want to practice after he leaves the White House, but this has more to do with the legal community upholding its own ethics than the president’s next career. The American Bar Association’s standards for lawyer sanctions leave little doubt: ‘Disbarment is generally appropriate when a lawyer, with the intent to deceive the court, makes a false statement, submits a false document, or improperly withholds material information and causes serious or potentially serious injury to a party. …’ Last April, federal judge Susan Webber Wright found Clinton in contempt for ‘giving false, misleading and evasive answers that were designed to obstruct the judicial process’ while under oath in her presence. She also has filed a complaint with the Arkansas Supreme Court, but did not recommend a specific penalty. …Clinton should surrender his license or the court should take it.” (editorial, May 15). Plus: Stephen Chapman in Slate (“Disbar Bill”, May 12). [DURABLE LINK]
May 16 — The asset hider. Curious profession of a New Yorker whose specialty consists in finding ways to help wealthy men hide assets so as to escape legal obligations to their wives. The proprietor of “Special Services” of E. 28th St. also boasts of his skill in private investigation, which didn’t prevent him from falling for the cover story of a New York Post writer who posed as a divorce-bent Internet millionaire while secretly taping their lunch (Daniel Jeffreys, “The Wealthy Deadbeat’s Best Friend”, New York Post, May 15).
May 15 — Doctor cleared in Lewis cardiac case. A team of cardiologists told basketball star Reggie Lewis that his playing days were over. Then his wife helped get him transferred under cover of darkness to a new team of doctors who said he could go on playing. Then he collapsed on the court and died. And then Donna Harris-Lewis, having already collected on her husband’s $12 million Celtics contract, sued the docs for negligence. One paid $500,000 to settle, but last week Dr. Gilbert Mudge of Brigham & Women’s won vindication from a jury. (Sacha Pfeifer, “The verdict is in: no negligence”, Boston Globe, May 9; Dan Shaughnessy, “Everybody has lost in Lewis case; let’s move on”, May 9; Barry Manuel, “As usual, only lawyers won in Lewis case”, May 11, links now dead). Earlier, Harris-Lewis drew flak by comparing herself to the families of six firefighters who died in a Worcester warehouse blaze. “Lots of money is being raised for those families, and I need to be taken care of, too. Everybody has to say I’m greedy. But I do want my money back this time around. Why should I lose?” Well, ma’am, we could start a list of reasons. … (Steve Buckley, “What was Harris-Lewis thinking?”, Boston Herald, March 28).
May 15 — The four rules of sex harassment controversies. We thought we had ’em memorized after the Anita Hill affair … then we had to unlearn all four during the late unpleasantness with President Clinton … and now they’ve all returned in coverage of the Pentagon’s Claudia Kennedy case. (David Frum, “Breakfast Table” with Danielle Crittenden Frum, Slate, May 12). In other harassment news, a jury has awarded $125,000 to a male waiter at a T.G.I. Friday’s near Tampa who said that female co-workers touched and grabbed him lewdly, that co-workers made fun of him when he complained, and that the restaurant chain proceeded to ignore his plight and retaliate against him. (Larry Dougherty, “Waiter wins suit against Friday’s”, St. Petersburg Times, May 5). And a Wisconsin appeals court has upheld a trial court’s award of $143,715, reduced from a jury’s $1 million, to a computer analyst who “said his boss spanked him with a 4-foot-long carpenter’s level during a bizarre workplace ritual” and then announced “Now, you’re one of us”. The boss testified that the spanking ceremony dated way back as an initiation at the Phillips, Getschow Co., a century-old mechanical contracting firm. (Dennis Chaptman, “Court upholds $143,715 award for spanking”, Milwaukee Journal-Sentinel, April 18).
May 15 — Convenient line at the time. Tobacco is special, said the state attorneys general who teamed up with trial lawyers to expropriate that lawful industry via litigation and share out the resulting plunder. It’s “the only product that, if used as intended, could be fatal.” And so they categorically dismissed critics’ fears that the tempting new ways of raising revenue without resorting to explicit taxation might soon be aimed at other industries. Who was fool enough to believe them? (Victor E. Schwartz, “Trial Lawyers Unleashed”, Washington Post, May 10).
May 15 — Gloves come off in Mich. high court race. We warned you it would get nasty (see May 9, Jan. 31), but not this soon. At a recent NAACP gathering, the Michigan Democratic Party circulated a flyer stating that incumbent Justice Robert Young opposes the 1954 U.S. Supreme Court decision in Brown v. Board of Education, which ended racial segregation in public schools. Young, who is African-American and whose record on the court has been conservative, terms the flyer “virulent race-baiting” and untrue and has demanded an apology. State Democratic chairman Mark Brewer dares Young to sue, but declines to name a source for the flyer’s characterization of his views on Brown. (Kathy Barks Hoffman, “Race for 3 spots on top court sparks charge of ‘race-baiting'”, AP/Detroit News, May 11; George Weeks, “Election of justices needs changing” (editorial), May 11).
May 12-14 — Microsoft opinion: the big picture. However well they’re doing in Judge Jackson’s court, Janet Reno’s trustbusters are getting slammed in the court of public opinion, which continues lopsidedly opposed to breakup. While a Harris poll finds less than 40 percent of respondents believing that Bill Gates’s company has treated its competitors fairly, that’s still a better rating than Joel Klein’s Antitrust Division gets: only one in three believe the government treated Microsoft fairly. (Paul Van Slambrouck, “High-tech trust-busting a bust with public today”, Christian Science Monitor, May 5; Manny Frishberg, “Public favors MS in antitrust”, Wired News, May 4). The Independent Institute’s Alex Tabarrok calculates that the loss in capital value of Microsoft as an enterprise amounts to $768 for every person in the United States, and that most of this sum can plausibly be attributed to the legal action rather than to business setbacks. (“The Anti-entrepreneurs,” May 1). Given that the rest of the high-tech sector has also taken a thrashing, economics Nobelist Milton Friedman says Silicon Valley “must rue the day that they set this incredible episode in operation” by siccing the government on their Seattle rival (statement reprinted at National Taxpayers Union site, April 28).
Does all this augur a revival of “vigorous”, sock-’em-hard antitrust enforcement, not much seen in the last couple of decades? If so, ABC’s John Stossel has some deserving nominees for breakup far more monopolistic than Windows ever was, including the U.S. Postal Service — yes, it’s still unlawful to compete with it in first-class service (“Give Me a Break: Government Protection?” (video clip), May 5). And Michael Kinsley wonders why the U.S. government, if it really takes trustbusting principles seriously, still takes such an indulgent, price-fixers-will-be-price-fixers approach toward OPEC — a genuinely noxious cartel that inflicts great damage on the American economy, and whose member countries (among them Russia, Norway, Venezuela and the spectacularly ungrateful Kuwait and Saudi Arabia) appear to suffer nary a repercussion in the conduct of U.S. foreign policy (“Readme: Oil Crooks”, Slate, March 27).
May 12-14 — Dismounted. “A therapeutic horse-riding program for 600 mentally impaired Oakland County children and teenagers is in jeopardy this summer, a potential victim of a liability impasse among lawyers and bureaucrats.” Parents praise the Silver Saddles program, but the county is unwilling to accept liability exposure for it, which could be financially catastrophic in the event of an accident to a young rider. (Hugh McDiarmid, Jr., “Riding-therapy program faces liability hurdle”, Detroit Free Press, May 5).
May 12-14 — Steady aim. Everyone who supports democracy — as well as everyone who opposes the abuse of litigation — should favor legislative measures aimed at reserving gun regulation to elected lawmakers rather than the machinations of ambitious trial lawyers, argues Vince Carroll of Denver’s Rocky Mountain News (“Gun bill puts halt to lawsuit abuse”, April 30). And Washington, D.C.’s Sam Smith, who shows regularly that there’s still life on the Left in his remarkable online Progressive Review (which we’re pleased to see often picks up items from this space), has put up a page of reasons “why politicians, moms, and progressives should stop pressing for more gun control laws” (“Wild Shots“).
May 11 — “Ad deal links Coke, lawyer in suit”. Both the Coca-Cola Co. and plaintiff’s attorney Willie Gary are denying a linkage between Gary’s role as a lawyer in the current high-profile race bias litigation against Coke and the company’s just-announced agreement — financial terms not disclosed — to become a major advertiser on a cable channel of which Gary is part owner. Last month amid fanfare the Florida lawyer arrived in Atlanta on his private jet (“Wings of Justice”) to assume representation of several of the original plaintiffs in the much-publicized employee litigation against the beverage company. “I want a settlement that’s fair and just,” he said then. “I don’t come cheap. I think big, real big.” On Tuesday Coke announced a major five-year deal to buy ads on the fledgling Major Broadcasting Cable Network, which Gary helped launch and of which he is chairman and chief executive. Gary says his clients are aware of the deal and says, “There’s absolutely no conflict. We’re not friends. We’re business people. Coke is not giving me anything. … It’s goods in exchange for service. … No way this is a conflict.'”
A sometime fund-raiser for the Rev. Jesse Jackson’s Rainbow/PUSH coalition, Gary is best known in legal circles for the ruinous $500 million verdict he obtained in a Jackson, Mississippi courtroom against the Loewen Group, a Canadian-owned funeral home chain, in what had previously seemed a routine commercial dispute (see our editor’s account). Last week he announced that he was demanding nearly $2 billion from the Burger King Corporation on behalf of Detroit restaurateur La-Van Hawkins, whose UrbanCityFoods business has not fared as well as expected in its operation of franchised hamburger units. Gary’s entry last month into the Coke case came at a time of unpleasant back-and-forth charges between some of the employees who were first to sue and class-action lawyers who had worked to assemble their and others’ complaints into a suit on behalf of the company’s entire black workforce, led by Washington, D.C.’s Cyrus Mehri, of Texaco fame (our account of that one), with the Mehri camp saying the individuals were holding out for too much money for themselves personally as distinct from the class, and a PUSH coalition activist, Joseph Beasley, countering that under the settlement anticipated from the class action the “lawyers get all the money” while “the black community is left high and dry”.
SOURCES: Henry Unger, “Ad deal links Coke, lawyer in suit”, Atlanta Journal- Constitution, May 10 (fee-based archive); Constance L. Hays, “Coke to Advertise on Channel Owned by Lawyer in Bias Suit”, New York Times, May 10, no longer online; Betsy McKay, “For Coke’s Big Race Lawsuit, a New Wild Card”, Wall Street Journal, April 14 (subscription); Beth Miller, “Cable network to focus on black families”, Media Central, Dec. 13; Trisha Renaud, R. Robin McDonald, and Janet L. Conley, “Money, Trust Behind Coke Split”, Fulton County Daily Record, April 14; “Burger King Has Greater Troubles: Internationally Renowned Trial Attorney Willie Gary Asks Burger King for $1.9 Billion”, Excite/PR Newswire press release from Gary’s firm, May 3; Eric Dyrrkopp and Andrew H. Kim, “Prospecting the Last Frontier: Legal Considerations for Franchisors Expanding into Inner Cities”, Franchise Law Journal, Winter 2000, reprinted at Bell, Boyd & Lloyd site.
May 11 — Tort fortune fuels $3M primary win. In Charleston, W.V., attorney and former state senator Jim Humphries has won the Democratic nomination in the Second Congressional District after investing $3 million from the fortune he made in asbestos litigation. Humphries’s “big-budget, slickly produced campaign” overpowered his primary rivals, who included one of the state’s best-known politicians, Secretary of State and former U.S. Representative Ken Hechler, as well as state senator Martha Walker, who chairs the state senate’s health and human resources committee; between them Hechler and Walker split about half the primary vote. The campaign “shattered all state records for spending in a congressional primary election.” Humphries now faces Delegate Shelley Moore Capito, R-Kanawha, who ran unopposed in the Republican primary. (Phil Kabler, “Humphreys’ $3 million pays”, Charleston Gazette, May 10).
May 11 — Stubbornness of mules a given. A federal court in North Carolina has dismissed a lawsuit by the producers of the soon-to-be-released film “Morgan’s Creek” against animal wrangler Alicia Rudd over the refusal of her trained mule to sit down on cue or cooperate in other ways on the set. The producers said the animal’s recalcitrance had prolonged shooting by an extra day, costing upwards of $110,000, but the judge said there was no proof that Rudd breached a promise or misrepresented her ability to control the mule. (“Judge finds stubborn mule no cause for action”, AP/CNN, May 8).
February 15 — County to pay “mountain man” burglar $412,500. Mincho Donchev, an escaped murderer from Bulgaria who lived for ten years in the Cascade Mountains of Washington breaking into vacation cabins, has won a $412,500 settlement of his lawsuit against Snohomish County for excessive force in his arrest. Two years ago, as Donchev resisted officers trying to subdue him, a police dog mangled his foot, causing the eventual loss of two of his toes; he was armed with knives, handguns and a pronged stick during the affair. The sheriff denies that either his deputies or the dog did anything wrong, but Donchev’s Seattle attorney, Mark Shepherd, said his client had “been horribly, grotesquely disfigured on his foot, and that foot will never function properly again”; the settlement money, he said, would help ease his client’s re-entry into society when he’s released from prison this August. Some local residents may have other ideas for where the money ought to go. “Every time he broke into our place he cleaned out every bit of our food in the cabinet and the refrigerator — pop, any kind of meat we had,” said Bob Gardner, whose vacation cabin was burglarized three times. (“‘Mountain-Man’ Thief Wins $412K for K-9 Bite”, AP/APB News, Feb. 4).
February 15 — Bill introduced to curb opportunistic ADA filings. Florida GOP Representatives Mark Foley and Clay Shaw have now introduced legislation “designed to block plaintiffs’ lawyers from using the Americans with Disabilities Act as a mill for grinding out legal fees,” reports the Miami Daily Business Review. As previously reported (see our January 26-27 commentary), more than 600 South Florida businesses have been hit with charges that their facilities are out of compliance with the ADA; most of the complaints can be traced to a small network of activists linked to lawyers who obtain legal fees typically in the thousands of dollars from defendants eager to settle. The new bill would require that businesses be given notice of an ADA problem and an opportunity to correct it before suit could be filed. According to a press release issued by the Congressmen, a group calling itself Citizens Concerned about Disability Access appears to consist mainly of “the two lawyers initiating the suits, and a neighbor and her disabled daughter who reportedly live across the street from one of the lawyers.” Some of its complaints are premised on the notion that the disabled daughter encountered barriers while trying to patronize the businesses, which included a pawn shop, a liquor store and a swimming-pool-supply store — the latter an especially curious subject of concern since the disabled daughter “has no swimming pool.” Last month U.S. Attorney General Janet Reno declined Rep. Foley’s request that the Justice Department investigate the matter. (Dan Christiansen, “Congressmen Rein In ‘Rogue’ Disabled Access Suits”, Miami Daily Business Review, Feb. 8).
February 15 — Britons debate false-rape-claim damages. In Newcastle upon Tyne, England, a four-man, eight-woman jury has ordered Lynn Walker to pay $630,000 (£400,000) in damages to co-worker Martin Garfoot, after concluding she had falsely accused him of raping her in a storeroom. Ms. Walker had waited nine months after the supposed incident to raise the claim and had sought neither police nor doctors’ help; video camera records from the days after the claimed attack showed her “at ease and untroubled” as she worked with the accused. Mr. Garfoot, 46, managed a branch of Boots, the drugstore concern; both Ms. Walker and Mr. Garfoot’s wife Janice are pharmacists. Feminist groups expressed outrage, but Mr. Garfoot’s barrister, Edward Garnier, Q.C., said: “She should not be able to simply walk away and hide in her tent after she has been found to be an out-and-out liar. Mr. Garfoot has spent the last few years wearing a cloak of shame. She twisted and twisted and twisted the knife in Mr. Garfoot.” (Nigel Bunyan, “Woman must pay £400,000 to man she said raped her”, Daily Telegraph (London), Feb. 8; Mark Blacklock, “Rape Claim Woman Lied”, Daily Express (London), Feb. 8).
February 14 — Bill Clinton among friendly crowd. The President hit Texas last week for a fund-raising tour of which the highlight was a $25,000-a-couple dinner hosted by trial lawyer husband-and-wife Fred Baron and Lisa Blue at their “palatial” (eleven bathrooms, six wet bars) Dallas home. The event raised an estimated $500,000 for the Democratic National Committee. The Reuters report describes Baron only as a “Democratic activist” but not as a trial lawyer, and none of the papers appear to pick up on his rather salient role as president-elect of the Association of Trial Lawyers of America. Needless to say, none of the reporters are so rude as to mention the controversies over the coaching of testimony in Baron’s asbestos claims practice, either. Maybe host and guest-of-honor shared tips about their respective successes with creative witness preparation.
The February 11 Dallas Morning News does report that at the Baron event “the president had plenty of lawyers to chat with. He was seated at the head table with trial lawyer Trevor Pearlman, and law partners/life partners Debbie and Frank Branson, as well as his lawyerly hosts.” (“Clinton Says Senate Doing ‘Slow Walk’ on Nominees, Reuters/Excite, Feb. 9; Madeline Baro Diaz, “Clinton arrives in South Texas to discuss border issues, raise money”, AP/Fort Worth Star-Telegram, Feb. 10; Todd J. Gillman, “In Texas, Clinton blasts GOP”, Dallas Morning News, Feb. 10; Alan Peppard, “Backing Bill all the way”, Dallas Morning News, Feb. 11 (fee-based archive)).
February 14 — U.S. foreign policy, hijacked by lawsuits. Trial lawyers’ freelance pile-on of WWII-recrimination suits is undercutting America’s effort to maintain a coherent foreign policy, most recently in Japan, where U.S. Ambassador Thomas S. Foley has joined the Japanese government in rejecting an attempt to claim compensation in U.S. courts for maltreated American prisoners in World War II. “The peace treaty put aside all claims against Japan,” Foley pointed out. The continuing claims are generating dismay and an anti-American backlash among Japanese (as also among citizens of various European nations). By this point, however, the American litigation system has grown so vigorous in its assertiveness that mere treaties may not be very effective at reining it in. (Doug Struck and Kathryn Tolbert, “US envoy, Japan reject WWII veterans’ lawsuits”, Boston Globe (originally Washington Post), Jan. 19, link now dead; Richard Pyle, “Ex-POWs want Japanese firms to pay for ‘slave labor'”, AP/Seattle Times, Sept. 15, 1999; “Anger as court rejects Allied POWs’ compensation suit”, CNN, Nov. 26, 1998) (see Sept. 20, Aug. 25, Feb. 5-6 commentaries).
February 14 — Improvements to our gun-litigation page. We’ve been continuing to add links to our subpage on firearms lawsuits. Included are the useful news-links page on gun issues maintained by the Colorado Shooting Sports Association, the special page on gun controversies at Jurist: The Law Professor’s Network, a bunch of choicely worded letters to the editor from the Detroit Free Press last summer responding to the NAACP’s suit, and Robert Levy’s Jan. 30 opinion piece for the National Law Journal, “Blackmail of gun makers“. In response to a suggestion from an attorney reader who protested, “We’re not all against gun rights, you know”, we’re also pleased to add a link to the Lawyers’ Second Amendment Society.
February 12-13 — AOL upgrade’s sharp elbows. America Online‘s new 5.0 upgrade, like many other pieces of software, asks whether you want to make it your “default” program for the purpose; if you say yes, it alters your settings in ways that make it easier to use AOL but harder to use other Internet service providers you may have installed. Some users have found that the AOL “default” setting makes it remarkably difficult indeed to use rival ISPs, and some ISPs report spending hours helping frustrated customers trying to use their service after having installed AOL 5.0 over it.
Enter class-action lawyers, who’ve filed two distinct lawsuits: one on behalf of the roughly 8 million AOL customers who’ve already installed the new version, and the other on behalf of rival ISPs. The suit on behalf of individual users rather arbitrarily demands up to $1,000 for each user, and CNN rose to the bait by describing the suit in its headline as being for $8 billion — even though AOL claims that more than 90 percent of its users do not have accounts with other ISPs, which means they’re unlikely to have run into difficulties (at least if they’re not trying to connect over a LAN or corporate system). AOL says other ISPs’ software does the same thing as its does, and contends that the upgrade gives users a smoother Net experience which has reduced reports of technical problems overall. According to USA Today, one of the suits invokes a federal anti-hacking law which provides both criminal and civil penalties for anyone “who alters the programs or use of a computer used in interstate commerce,” quoting “Lloyd Gathings, a Birmingham, Ala., lawyer involved in the case.”
SOURCES: Brian McWilliams, “AOL Sued Over Networking Bugs in AOL 5.0”, InternetNews.com, Feb. 2 (& see same site, Oct. 6, 1999, Oct. 12, 1999, and Feb. 8, 2000, all links now dead); “AOL Sued over 5.0 Install”, Reuters/ZDNet, Feb. 2; Slashdot, Feb. 2 (bonus: thread includes link to this site); “Disgruntled AOL 5.0 users seek up to $8 billion in damages”, CNN.com, Feb. 2; “AOL sued over latest software”, USA Today, Feb. 2; Brooke A. Masters, “AOL Rivals File Suit Over Its New Software”, Washington Post, Feb. 8; Donna DeMarco, “AOL 5.0 problems boot up users’ ire”, Washington Times, Feb. 9, link now dead; Peter H. Lewis, “Takeover Artist”, New York Times, Feb. 10. The inevitable website by lawyers organizing the suits is called www.classactionversion5.com.
February 12-13 — Blue-ribbon excuse syndromes. Former Chicago City Treasurer Miriam Santos, once a rising star of the Democratic Party, has “blamed her now-overturned conviction on extortion charges on pre-menstrual syndrome….’I am human and probably the first woman to go to jail for PMSing,'” she told a news conference. (“Former treasurer blames PMS for crime”, UPI/Virtual New York, Feb. 7). A lawyer for New York City’s Dr. Allan Zarkin, charged with carving his initials into a sedated patient’s belly after delivering her baby by Caesarean section, says his client “has a “frontal lobe disorder” called Pick’s disease, an Alzheimer-like disease that causes personality and behavior changes and dementia.” (“Doctor charged in carving incident”, Reuters/Excite, Feb. 10; “Report: Woman Settles with Doctor”, Feb. 12). Vancouver Metis Indian Deanna Emard, convicted of stabbing her common-law husband to death, has gotten off without jail time because Canadian law now recognizes Indians’ cultural oppression as a mitigating factor in sentencing. (Neal Hall, “Metis woman avoids jail term for killing husband”, Vancouver Sun/National Post, Jan. 20). And in a recent U.S. News column, John Leo nominates 1999’s top ten claims of victimization, including several discussed previously in this space as well as additional contenders such as James Moore, a landscape gardener from upstate New York who raped and strangled a 14-year-old girl in 1962 and asked a judge last year for release from his life-without-parole sentence, arguing that exposure to insecticides made him do it. (“The top ten victims”, Jan. 31).
February 12-13 — The nutty professor. How does University of Wisconsin law professor Marc Galanter retain his position as the favorite academic of America’s trial lawyers? In part by his willingness to dispense to reporters quotes like the following: “Some who have studied the issue say that what Bush has called ‘the litigation explosion in Texas’ was nonexistent. ‘There is really no evidence that frivolous or totally unfounded lawsuits pose a significant problem,’ said [Galanter].” (George Lardner Jr., “‘Tort Reform’: Mixed Verdict”, Washington Post, Feb. 10). (tell the Post what you think).
February 10-11 — Antitrust obstacles to hacker defense. This week’s hacker attacks on Yahoo, E-Trade and other sites are likely to encourage proposals to establish surveillance of the Net by federal law enforcers, but a better reaction, according to MIT network manager Jeff Schiller, would be to roll back existing regulations that make it hard for operators to coordinate network security. “There needs to be a way network operators can [work together] in a way that’s immune from Sherman antitrust,” he said. “We had a situation at IETF (Internet Engineering Task Force) where we couldn’t have two people in the same room together by themselves since they were representatives of big competitors.” (Declan McCullagh, “Was Yahoo Smurfed or Trinooed?”, Wired News, Feb. 8) (second page of story).
February 10-11 — ADA vs. freedom of expression on the Web. The U.S. Department of Justice has indicated that a wide range of Internet activity may be subject to the Americans with Disabilities Act and its requirement that “reasonable accommodation” be provided to handicapped users (see Dec. 21 commentary). At a hearing before the House Judiciary Committee yesterday (Wednesday), panelists explained that a wide range of common page construction techniques currently cause websites to be “inaccessible”, including the use of undescribed visual and audio elements, image maps that lack text for hotspots, link text that does not make sense when read out of context (example: “click here”), graphs and charts that are not summarized, nondescriptive frames titles, and much more. The editor of this site, unlike several of the other witnesses, found it alarming that federal law should presume to enforce such rules on private web publishers. We’ll try to provide a fuller report on the hearing at a later point; in the mean time, we’ve posted our editor’s prepared statement.
February 10-11 — “Not-a-Lawyer”. Fast Company nominates it as among “Job Titles of the Future”, and it’s the official description on Rory Holland’s business card. Mr. Holland works for Canadian law firm Russell & DuMoulin in Vancouver, helping clients “figure out what role lawyers should play in their companies”. (Erika Germer, Fast Company, March).
February 10-11 — Gun litigation roundup. Free-Market.Net’s J.D. Tuccille has assembled a link-rich “Spotlight on Anti-Gun Lawsuits” feature (Jan. 6). At a gun industry trade show last month in Las Vegas, members vowed greater activism in fending off attacks on their business, including the formation of a legal defense fund under the auspices of the National Shooting Sports Federation to respond to courtroom bullying. (Melanie Eversley, “Gun dealers take aim at rash of anti-gun suits”, Knight-Ridder/Spokane Spokesman-Review, Jan. 19). And in a Cato Institute Daily Commentary, David Kopel counters some myths about the supposed “gun show loophole”. One Congresswoman has charged that 70 percent of guns used in crimes come from gun shows, but National Institute of Justice figures indicate the figure is 2 percent, Kopel says. Handgun Control, Inc. “claims that ’25-50 percent of the vendors at most gun shows are unlicensed dealers.’ That statistic is true only if one counts vendors who aren’t selling guns (e.g., vendors who are selling books, clothing or accessories) as ‘unlicensed dealers.'” (David Kopel, “The Facts About Gun Shows”, Cato Daily Commentary, Jan. 10).
February 10-11 — Orange, soured. After representing bankrupt Orange County, Calif. and other public entities seeking to recoup investment damages, the L. A.-based law firm of Hennigan, Mercer & Bennett petitioned for an extra $48.7 million on top of its standard fee. In November U.S. District Judge Gary Taylor of Santa Ana issued an order allowing a mere $3 million of that request. What really stung was the judge’s language: he called the firm’s arguments for the enhanced fee “flawed”, “cynical”, and even “unethical” and “dishonorable”. The firm had already been accorded fees of $26.3 million based on hourly charges of up to $445 an hour for its work on the cases, but then placed a lien on the county’s recovery in quest of an additional $48.7 million as a “lodestar” multiplier to reward it for having achieved good results in the face of difficulty. “If lawyers in cases like these are paid only their straight hourly rates, they have less reason to maximize results for clients,” the firm said in a court filing, which prompted the judge to ask at oral argument: “Do you really believe that?” The judge’s subsequent fee opinion asserted that attorneys are obliged to do their best for clients whether or not the fee arrangement partakes of a contingency element: “anything less would be unethical and dishonorable.” Now there’s a revolutionary idea! A legal ethics expert says the judge is being “idealistic”. (Gail Diane Cox, “Firm Smacked by Judge Over Orange Bankruptcy”, Cal Law/The Recorder, Nov. 17).
February 8-9 — Litigious varsity. “High school sports should be a healthy, fun lesson in fair play, not a prep course for law school.” But parents and educators are running to court to get referees’ calls reversed, says a Boston Globe editorial. The Massachusetts Interscholastic Athletic Association reports that eight lawsuits arose in the last year alone from high school games. After a brawl during a recent hockey game between Melrose and Stoneham, several players were handed a two-game suspension, but a mother went to court and got a restraining order letting her son back on the ice, claiming he hadn’t been involved. In a case in Springfield, officials didn’t clear the legal paperwork allowing them to eject an offending player until the next game was about to begin and the National Anthem was playing, the player suited up and ready. (“Spoiled sports” (editorial), Boston Globe, Jan. 17, link now dead). And in Brunswick, Ohio, a father sued the coach of the Brunswick Cobras boy’s baseball team for leading the team to such a poor record. “Charles Settles, whose son, Kevin, was the catcher on the 16-year-old-and-under team,” went to small claims court asking $2,000, “the estimated value of a seven-day Florida trip the team could have made had it not lost every game — most by a 10-run ‘mercy’ rule.” A magistrate dismissed the action. (Stephen Hudak, “Losing season prompts dad to sue son’s coach”, Cleveland Plain Dealer, Jan. 9).
February 8-9 — From the dog’s point of view. A week ago we reported on dogbitelaw.com, a lawyer’s website that encourages persons bitten by dogs to sue the animals’ owners (see February 1 commentary). Now, for balance, here’s an excerpt from a Washington Times interview last week with Boston attorney Steven Wise, who heads an animal-rights group called the Center for the Expansion of Fundamental Rights. “Over the last 15 years, I have represented probably 150 owners of dogs who have been ordered executed or banished from their towns. People may have complained they bit someone or they bark excessively.
“Most people who have companion animals consider them family members. They come to me and say one of my family members has been ordered executed. We’ve managed to save the lives of every single one except for two people who didn’t stay with us.
“We try to convince judges to say it’s a good and safe thing for dogs to live with their families. We bring in an animal behaviorist and try to help the judge understand what happened from a dog’s point of view.”
The judges who hear these cases aren’t the only ones giving more consideration to the dog’s point of view; last week Harvard Law School kicked off its first-ever class in animal-rights law, with Mr. Wise as instructor. (“Animal rights lawyer unleashes profession”, Washington Times, Feb. 3, link now dead).
February 8-9 — Emails that ended 20 Times careers. MSNBC has posted this Wall Street Journal account of the New York Times‘s mass firing of 23 employees, all but one of them in the company’s Norfolk, Va. outpost, found to have forwarded offensive e-mails, including sexually oriented images, blonde jokes and Ebonics jokes. One of the fired employees, former database security manager Carla Belgrave, “who is black, says she found the Ebonics jokes funny. ‘I don’t speak that way,’ she shrugs. ‘Who’s to tell me what I should be offended by?'”.
“Why are the Times and other companies so concerned about e-mail? One reason is their liability in harassment suits. One or two explicit e-mail messages typically aren’t enough by themselves to prove that a workplace environment was hostile. But such e-mail can bolster other damaging evidence. At a subsidiary of Chevron Corp., e-mail containing such jokes as ’25 reasons beer is better than women’ were used along with other evidence in a sexual-harassment claim that was settled in 1995 for $2.2 million.” (Ann Cairns, “That bawdy e-mail was good for a laugh — until the ax fell”, MSNBC (highlights from WSJ.com), Feb. 4, link now dead). Also see Lisa Fried, “Employers Crack Down on Personal Internet Use”, New York Law Journal, Jan. 3; Christine A. Amalfe and Kerrie R. Heslin, “Courts start to rule on online harassment”, National Law Journal, Jan. 24).
February 8-9 — Court insists on summoning nine-year-old girl as juror. Her Brooklyn parents have been trying to explain for the past year that she’s too young to serve, but the paperwork grinds on as judicial officials insist that fourth-grader Alyson Fuchs report for her civic duty. Her mom, who thinks Alyson may have gotten on prospective-juror lists because she has college savings in a mutual fund, is giving up and bringing her in to the courthouse, which she’s eager to see anyway. (Bridget Harrison, “A Jury of Peers?”, Fox News/New York Post, Feb. 6) (via Reason Express)
February 7 — Mobile Register probes class-action biz. Alabama cases have figured prominently in complaints of class-action abuse and the Mobile Register deserves some sort of prize for the thorough investigation of the topic it published over the holidays in a five-day report written by Eddie Curran. The series contains too much good material to summarize in a single installment, so we’ll start with one chunk for now and come back for more later. (Impatient readers can find the entire series here: “On behalf of all others”, Mobile Register, Dec. 26-30).
The series includes a thorough airing of the famous BancBoston case of the mid-1990s, filed in Mobile, in which locally based lawyer John Sharbrough teamed up with the Chicago class-action firm of Daniel Edelman to accuse the large lender of retaining excessively high escrows for mortgage borrowers nationwide, one of many similar class actions filed at the time against mortgage lenders over escrow practices. Pressured by a rules change from the federal Department of Housing and Urban Development, BancBoston and other lenders agreed to reduce the escrows, thus allowing consumers earlier recoupment of money which they’d eventually have gotten back anyway. In the case of BancBoston, the repayments that were accelerated were estimated in the lawsuit at about $42 million, but the actual sum seems to have been lower.
For achieving this result, the class-action lawyers asked for more than $14 million, all of it deducted directly from consumer accounts; Mobile County Circuit Court Judge Braxton Kittrell wound up granting them more than $8.5 million of that request. Thus consumers around the country were billed what was often $100, $150 and more in exchange for benefits that included the refund of a few dollars interest (in no case more than $8.76) and the chance to use their funds somewhat earlier than would otherwise be the case — mere weeks or months earlier in the case of many who were near refinancing or selling their homes at the time.
How’d the lawyers pull it off? They hired as expert witness a local accountant who testified that the real economic benefit to a consumer of getting back a lump of money earlier than otherwise is equal to the total sum at issue — after all, once he had it in hand he could invest it and double his money! The lawyers could then claim fees equal to a third of this notional benefit. The witness also assumed that the bank would otherwise have held surplus escrows for twenty years before refunding them, though in fact most loans get paid off through refinances or home sales within a few years and many of the mortgages were of 15-year duration. Boston U. law professor Susan Koniak, who’s co-authored a law review article on the case, describes the resulting enrichment of lawyers as “so outrageous, it’s not even a close call”. When a Maine real estate broker and class member named Dexter Kamilewicz stepped forward to challenge it, however, Chicago lawyer Edelman countersued Kamilewicz personally for $25 million, cowing him into silence (see Nov. 15 commentary).
Prominent class-action lawyer Elizabeth Cabraser, who was not involved in the case, defended the current state of the system, telling the Register that the BancBoston case is “like urban folklore“, that it “did happen, but it continues to be brought out as an example of class action abuse when in fact there’s never been another case like it,” in her words. “There’s never going to be another BancBoston case, and there doesn’t need to be legislation to prevent that from recurring. It won’t. It was freak in every sense.”
But is that so? The Register had no trouble finding escrow cases against other mortgage lenders that led to outcomes very similar to those in BancBoston, but were given less publicity. In these cases, too, consumers found themselves docked hundreds of dollars for little evident benefit and complained in heated letters to the court. In truth, “the BancBoston case was not alone…some other Alabama judges — such as Montgomery County Circuit Court Judge Sally Greenhaw and Choctaw County Circuit Court Judge Harold Crow — approved similar settlements for the same lawyers, but avoided public scorn.” In a case against Colonial Mortgage, class lawyers asked judge to award them 40 percent of the escrow sums — an even higher share than in the BancBoston case. (“You win, you pay”, Dec. 29; “Bottom of the class”, Dec. 30; “Colonial customers rage at lawyer, judge”, Dec. 29).
February 7 — New subpage on Overlawyered.com: disabled-rights law. In which we pull together our reports on how students with clever parents get extra time on the SATs, the risk if you’re a merchant of not admitting an emotional-support dog to your shop, courthouses that hear handicap accommodation lawsuits but fail to comply with the law themselves, disability suits for boozing student athletes who don’t want to be thrown off the team, and other dispatches from the front lines of the Americans with Disabilities Act and related statutes. Incidentally, this Wednesday our editor is going to be a witness at a House Judiciary Committee hearing on the ADA’s application to the Internet. See our Dec. 21 commentary for a preview of his likely comments about the ominous implications of letting website publishers get sued on the grounds that their content isn’t sufficiently “accessible” to all users.
February 5-6 — Don’t blame us, we didn’t say it: “‘If criminals can rehabilitate themselves, then why can’t lawyers?’ — East Lansing attorney Steven A. Mitchell, quoted in Michigan Lawyers Weekly on a proposal to permanently disbar lawyers for misconduct.” The Detroit News ran the above item under the heading: “But I Repeat Myself”. (Editorial roundup, Jan. 22).
February 5-6 — Weekend reading: columnist-fest. More well-stated cases from the in-box:
* Laura Pulfer of the Cincinnati Enquirer, who admits to an occasional weakness for shopping sprees at outlet stores, receives a notice in the mail saying she’s a member of the plaintiff class in a class action against Polo Ralph Lauren Corporation. “I am allowing myself to get a little bit excited. This is a defendant with deep, deep pockets. And Mr. Lauren apparently has done something terrible, something really bad, something actionable, something expensive to me.” However, the prospective settlement merely promises a discount if she goes back for another splurge at the store (“Lawsuit just an invitation to go shopping”, Feb. 3). Bonus: the same columnist comments on animal-rights law (“Does your dog need services of a lawyer?”, Nov. 7) and on warning labels (“It’s impossible to outlaw sheer stupidity”, Feb. 18, 1999) (NPR Morning Edition version, Real Audio).
* “There’s scarcely an issue in international affairs this year more likely to induce a feeling of moral superiority in Americans than that of the dormant Jewish accounts in Swiss banks.” Yet the recently issued Volcker report reveals that the actual sums in such accounts fall “staggeringly short” of what had been alleged by American class-action lawyers. More remarkable yet, the United States was at least as important as Switzerland as a destination for money escaping Nazi rule, yet somehow escapes scrutiny though it did little after the war to compensate heirs of dormant accounts (Alexander Cockburn, “Forget About the Swiss; What About US Banks?”, NewsMax, Dec. 29).
* Good general brief overview by CBS News legal correspondent Andrew Cohen on why this country is so litigious and what might be done — he even mentions loser-pays. (“Americans going nuts for lawsuits”, USA Today, undated). It leads with this grabber: “The Girl Scouts now take customers to small claims court when cookie payments are not made on time.” We hope he’s just referring to one overzealous troop somewhere.
February 5-6 — 200,000 pages served on Overlawyered.com. Thanks for your support!
February 4 — Special assignments for special cases? Federal judges at the U.S. District Court in Washington, D.C. have now voted to require incoming cases to be assigned randomly among their number. Eyebrows were raised last year when it was revealed that chief judge Norma Holloway Johnson had used special procedures to bypass random selection and assign six Clinton Administration scandal cases to judges appointed by the Clinton Administration. Included were five fund-raising prosecutions, including that of presidential friend Charlie Trie, plus the tax evasion case of Webster Hubbell. In a letter to the editor of a newspaper, Judge Johnson said that she made the assignments to “move the docket as expeditiously as possible” and that politics was “never a factor.” (“U.S. judges end controversial rule that let Clinton appointees get Democrats’ cases”, AP/Dallas Morning News, Feb. 3).
February 4 — Jeff MacNelly. The premier editorial cartoonist of his generation is currently keeping to a reduced but regular output schedule while battling health challenges. His website allows you to send him a get-well message and browse an archive of his cartoons back to the middle of last year, including great panels on Microsoft, health care, tobacco, tobacco (again) and many more. Then there’s his oil painting of lawyers….
February 4 — Taco Bell bites back. In 1997 customer Dwonne N. Carter charged that she had been insulted because of her race by an employee at a Taco Bell in Oconomowoc, Wisconsin. Plenty of press coverage resulted, and the restaurant’s business fell off sharply. But Carter’s story in her discrimination lawsuit kept changing, and she turned out to have previously filed and then recanted charges of rape and abduction in another case. Taco Bell countersued for defamation and last month a jury found in the company’s favor, awarding it a token $1,060 in damages. The tapes from the restaurant’s surveillance camera proved particularly helpful. (Gretchen Schuldt, “Customer defamed Taco Bell, jury decides”, Milwaukee Journal Sentinel, Jan. 14).
February 4 — Green cards gather moss. Linus Torvalds, Finland-born architect of Linux and perhaps the world’s most admired programmer, has been in this country three years. He’s still waiting for his green card. Thousands of engineers and other highly skilled immigrants in Silicon Valley are in the same predicament, as delays stretch on seemingly endlessly in the processing of applications for permanent residency. The average wait for final green card processing has jumped from 21 months a year and a half ago to 33 months. Holders of H-1B visas can stay at most six years, which is not always long enough to make it through the queue. “Real lives are being destroyed,” says immigration attorney Peter Larrabee, and an Immigration and Naturalization Service official privately calls the situation “a mess”. At least no one can accuse us of discriminating unduly in favor of the talented. (Ken McLaughlin, “Workers left in limbo by INS”, San Jose Mercury News, Jan. 30, link now dead; Wired News, Feb. 1).
February 3 — Reason Online “Featured Site”. Overlawyered.com has just been awarded this honor, bestowed approximately weekly by the lively website associated with the magazine of “free minds and free markets”. While you’re visiting the site, now would be a good time to catch up with our editor’s February column, which examines the class-action lawyers’ assault on the high-tech business, taking off from the Toshiba laptop settlement and the private actions against Microsoft that tagged along in the wake of Judge Jackson’s findings of fact. (main page/archive; Walter Olson, “Gold Bugs”, Reason, February).
February 3 — Tobacco: Connecticut AG has “no idea” whether lawyers he hired are overcharging. Richard Blumenthal, attorney general of Connecticut, is much feared by that state’s business community for his relentless and headline-grabbing pace of suit-filing; he’s known for “demonizing his foes”. One group of business people in the state, however, will “do extraordinarily well” from his tenure: the “tiny group of private lawyers” whom he hired to represent the state in the tobacco litigation. Queried about how much money these lawyers are getting from the deal, Blumenthal says, “I have no idea.” He says he’s sure it’s “substantially less” than the generous 25 percent contingency he agreed to bestow on them, which if followed through would have given them $900 million (the firms agreed not to insist on that full amount). It happens that the four lucky law firms he picked to do the work include his own former firm, Silver, Golub & Teitell of Stamford. (Thomas Scheffey, “Jedi Blumenthal”, Connecticut Law Tribune, Dec. 1) (see February 16 update: fees to total $65 million, more details on lucky firms).
February 3 — Another pro bono triumph. Beat cop Jim Gratz says he was acting on his own initiative when, imitating a practice used by some other Bay Area police departments, he asked some of the hardest-core drinkers who slept in San Francisco’s Washington Square Park if he could snap their pictures. Then he had flyers printed up and handed them to owners of nearby liquor stores, asking them not to sell to these people. “Someone had to do something to try and save their lives…I have nothing against booze, but plainly it was killing them,” he says. Well, the homeless-advocacy lawyers were on his case like a duck on a June bug, and soon the city agreed to settle the resulting litigation by paying each of the ten people approximately $960, which they spent on…well, what do you think they spent it on? All are still on the street, Gratz says, and one was admitted to Laguna Honda Hospital nearly paralyzed with alcohol poisoning. (Scott Ostler, “Trying to Help Just Doesn’t Pay”, San Francisco Chronicle, Jan. 6).
February 2 — “Children’s rights” fee grab. In 1995, following front-page scandals about child neglect in New York City, a private group called Children’s Rights Inc. filed suit seeking court oversight of the city’s child welfare system. The case ended in a settlement in December 1998. Now Children’s Rights Inc. is asking a court to award it $9.1 million in legal fees for its work on the case, to be paid from — where else? — taxpayer funds. City child welfare commissioner Nicholas Scoppetta is particularly steamed about the fee demand because he says the city offered to settle the case in May 1997 on terms substantially the same as those eventually reached. Children’s Rights Inc. spurned that offer and insisted on battling for a further year and a half, during which time the group ran up what it says are $6 million in billable hours. Scoppetta says $9 million would be enough to hire 230 child welfare caseworkers, put 1,059 children in Head Start for a year or support 1,200 kids in foster care, if it isn’t handed to lawyers instead. (“Children’s rights is wrong” (editorial), New York Daily News, Feb. 1; “Children’s Advocacy Pays” (editorial), New York Post, Feb. 1; past Post coverage).
February 2 — Cookies, dunked. Privacy advocates have been aghast at the recent disclosure that Internet ad-placement firm DoubleClick is planning to combine cookie use with access to clients’ site-registration data in ways that will enable it to detect the actual identity of many users who currently enjoy the customary expectation of anonymity as they browse its clients’ sites. Already a California lawyer has jumped in to sue the company; his named client does not claim to have suffered any damages, but he says he wants to “put DoubleClick’s policies under a microscope.” Of course his client could just have gone to DoubleClick’s site and selected the “opt out” feature, which the company says will bail you out of its cookie-mongering for the life of your browser or until you delete your cookie file, whichever comes first. To repeat: if a privacy solution that simple happens to appeal to you, just press here and follow the “opt out” link. But that wouldn’t be nearly as much fun as suing, would it? (“DoubleClick defends data gathering as suit pends”, FindLaw/Reuters, Jan. 28; “Privacy group eyes DoubleClick”, Reuters/Wired News, Feb. 1). Update May 9, 2001: federal court dismisses one such suit.
February 2 — Cuomo menaces gun makers: “death by a thousand cuts”. Settlement talks have broken down between firearms makers and activist litigators who continue to seek restrictions on gun sales that go beyond anything they can persuade democratically elected legislatures to enact. On Monday HUD secretary Andrew Cuomo warned gun companies that unless they cooperate they’ll suffer “death by a thousand cuts” from lawsuits filed by 28 localities (and vocally backed by his own department). Could the Cabinet secretary be invoking the cost-infliction threat of litigation to bully an opponent? Naah — that would be unethical. (Bill McAllister, “Gun industry rejects settlement effort”, Denver Post, Feb. 1).
February 1 — Welcome Humorix (and Slashdot) visitors. Humorix, complete with penguin-graphic adornment, consists of parody and humor articles geared to aficionados of the Linux open-source operating system. Last week it ran a piece by Dave Finton and James Baughn about the DVD-copying-code litigation (see Dec. 31 commentary) which pointed to this site by way of providing an embedded link for the phrase “overachieving lawyers”. Then yesterday a discussion of the piece in turn made it onto Slashdot. Jeepers, do a lot of people ever read Slashdot: next thing we knew we were beating, by far, this site’s previous daily traffic record (assisted by some other publicity). (“Corporate Media Conglomerate HOWTO”, Jan. 26.)
February 1 — Give us Syracuse. Trial began last week in upstate New York on Cayuga Indian land claims, the first such Indian case to make it to a jury for damages. Lawyers for the tribe, backed by the U.S. Department of Justice, say they’re owed at least $335 million in market value and rental fees for lands in the Finger Lakes region bought from them in 1795 and 1807 in deals which the U.S. Supreme Court in 1985 voided as having lacked the federal government’s go-ahead as required by law. Waiting in the wings: similar (often larger) claims by the Oneidas, Mohawks, Senecas and Onondagas. Wrangling over the Onondaga claim promises to be especially lively because the large tract of land under dispute includes the city of Syracuse, New York’s fifth largest. “It’s in total violation,” says the Onondaga chief, referring to the 160,000-population community. (James Odato, “Land’s value at heart of Cayuga claim case”, Albany Times-Union, Jan. 25; David L. Shaw, “Damages trial focuses on cash”, Syracuse Online, Jan. 24; “Claim comes down to numbers”, Syracuse Online, Jan. 25; Matthew Purdy, “Tribal Justice? They’d Settle for Syracuse”, New York Times, Jan. 30; see our Oct. 5-6, Oct. 27 commentaries) (via Empire Page) (see update, Feb. 19-21).
February 1 — Down, attorney! Down! Here’s a site for you if you’re a mailman tired of having your leg chewed on, or just want to convince the neighbors to send that ill-tempered yapper of theirs to the glue factory: dogbitelaw.com. “Attorney Kenneth Phillips is available by e-mail at no charge. He will respond to your questions about dog bites,” explains the promotional copy. Lots of links, too, such as one to the website of a canine forensics specialist to testify in your lawsuit: dogexpert.com. (via The Recorder/Cal Law).
February 1 — Career advice: become a lawsuit entrepreneur. Columnist Jim Pinkerton tells the public-administration class of ’00 they’re wasting their time thinking about civil service, when the real action in government today is in privately managed policy-through-lawsuits. “Why plow through discrimination cases in a back room at the EEOC, when you can join hands with Jesse Jackson and sue the pants off of some big company in a civil rights class action? Why work at the FDA and worry about drug approvals, when you can work at a law firm and share in billions after the drug is withdrawn and the suits are settled? Why lobby for gun control, when you can sue and put the gun makers out of business?” Why tinker with health care regulation when you can just file suit against HMOs and make yourself a player at the negotiation table overnight? Yes, it’s a parody, but just barely. (James Pinkerton, “Being a Bureaupreneur”, GovExec.com (Government Executive magazine), January).
February 29 — Update: Publishers Clearing House case. Turning aside objections from state attorneys general who viewed the deal as offering more prizes to lawyers than to magazine subscribers, federal judge G. Patrick Murphy approved a settlement of a class-action suit against Publishers Clearing House for allegedly misleading sweepstakes claims. He also approved as fair and reasonable the payment of $3 million in legal fees to the class lawyers, a sum criticized as excessive by objectors and by commentators such as the St. Louis Post-Dispatch‘s Bill McClellan. (“Publishers Clearing House Deal OKd”, AP/FindLaw, Feb. 22).
As readers of this space will recall (see Nov. 30, Nov. 4 commentaries) McClellan in his column on the suit jocularly compared class-action lawyers to bank robbers and then corrected himself, saying the comparison wasn’t fair to bank robbers, who don’t pretend they’re in business for our good. Class-action lawyers Judy Cates and Stephen Katz then proceeded to sue him for $1 million, charging that these sentiments had defamed them. Among the discovery demands they proceeded to make was that McClellan turn over everything he’d written in the past decade that was “in any way critical or mocking to lawyers or lawsuits.” In another of their discovery forays, McClellan advises readers in a recent column, “Cates and Katz were demanding all correspondence I have received relating to their lawsuit. In other words, if you sent me a letter or an e-mail concerning this case, they wanted it. They wanted to see who has written what about them.” Now an agreement has been reached to end the lawsuit — on what terms is not immediately apparent. (Bill McClellan, “This is a situation where even when you win, you lose”, St. Louis Post-Dispatch, Feb. 23).
February 29 — Feds’ mission: target Silicon Valley for race complaints. The federal Equal Employment Opportunity Commission has decided that Silicon Valley employers would make a suitably high-profile target for a series of race discrimination complaints, and now is “scouring” the Valley for likely defendants. A likely charge is that despite the strong representation in high-tech employment of ethnic groups from around the world, local blacks and Hispanics are underrepresented in professional and managerial slots. “We’ve been beefing up our staffing in every place that we see significant economic growth related to high technology,” says EEOC vice chairman Paul Igasaki, a long-time civil rights attorney: “this is an industry in which a message may need to be sent.” A source within the agency puts it more bluntly: “We’re busy looking under every rock we can, looking for a couple of high-profile companies we can hit with a suit.” (Gary Rivlin, “Busting the Myth of the Meritocracy”, The Industry Standard, Feb. 21).
February 29 — Tobacco lawyers’ lien leverage. While states are salivating at the vast new revenue banquet promised by the tobacco settlement — with no need to do anything unpopular, like raise taxes! — some are finding that the trial lawyers who seemed so helpful at first are now proving obstreperous, slapping the states with liens that may prevent the distribution of some or all settlement booty until the lawyers’ share is resolved. In New Jersey, Bergen County plaintiff’s attorneys Terry Bottinelli and Marc Saperstein blocked access to upwards of $92 million in funds, then relented when the state agreed to help document their case for sharing in the fee payday, though in the end it merely made short mention of their work in a press release. (Matt Ackermann, “New Jersey’s Tobacco-Suit Dividends Delayed by Hold-Out Attorneys”, New Jersey Law Journal, Jan. 11; “Holdout Tobacco Lawyers Will Relent If State Documents Their Case for Fees”, Jan. 18; “N.J. Tobacco Settlement Holdouts Drop Appeal”, Feb. 17) (more N.J. tobacco-fee coverage: Oct. 1). In Illinois, Seattle attorney Steve Berman’s Hagens & Berman, San Francisco’s Lieff, Cabraser, Heimann & Bernstein, and two other firms slapped a lien on the state’s $9.1 billion windfall; last fall a national arbitration panel ruled that while the Berman firm had been an important player in tobacco litigation on the national scene, “relatively little was done to advance the case to trial in Illinois”. Berman, quoted in the Chicago Tribune, conceded that not everyone sympathized with his position that he and the other lawyers are nonetheless entitled to as much as $910 million for their Illinois work: “Some people say lawyers have got a lot of money and are overpaid and are bad guys anyway”. (Rick Pearson, “Lawyers demand a bigger piece of tobacco cash pie”, Chicago Tribune, Nov. 23) (more Illinois tobacco-fee coverage: Oct. 16; more on Berman: Feb. 28, Aug. 21).
February 28 — “Medical errors” study. Malpractice lawyers have already seized on a recent federal study (see Feb. 22 commentary) which extrapolated from a study of hospitals in three states to the conclusion that between 44,000 and 98,000 patients die each year nationally because of mistakes in medical care. In a short paper for the Statistical Assessment Service, Iain Murray and Howard Fienberg point out a few of the study’s questionable premises. For example, the study’s definition of medication-related errors, a significant share of the total, “is based on errors that resulted ‘from acknowledged errors by patients and medical personnel'” (emphasis added). “In other words, if a patient takes an overdose or fails to inform their medical advisers of other conflicting medications they are taking, that is regarded as a medical error, rather than misadventure.” (Iain Murray and Howard Fienberg, “Doctoring the Data, Nursing the News?”, “STATS Spotlight”, Feb. 24) (via Junk Science). Plus: a Chicago Tribune editorial urges caution: “Don’t Compound Medical Errors”, Feb. 27.
February 28 — Fifteen years locked away. If you think the day-care-abuse mania of the 1980s has mostly run its course, consider the case of Bernard Baran, convicted of mass molestation in 1985 in Pittsfield, Mass. under the sorts of dubious circumstances that were later to become familiar in such cases. Katha Pollitt’s Nation account mentions in passing that the mother who initiated the accusations, a drug addict living in troubled circumstances, proceeded to file a suit against the center demanding $3.2 million (the case “was settled out of court, reputedly for a small sum”), and that one of the children, whose mother was a friend of the original accuser, “told a therapist after the trial that her mother had told her to say Baran had molested her so they could get toys and money”. Since Baran still insists on his innocence he’s ineligible for parole. (Katha Pollitt, “Subject to Debate: Justice for Bernard Baran”, The Nation, March 13) (via Arts & Letters Daily) (“The Appalling Case of Bernard Baran”, website about the case).
February 28 — Hiring talent from the opposing camp. Seattle plaintiff’s lawyer Steven Berman is among the most feared in the country; a class-action securities specialist, he went on to assume a prominent role in the tobacco litigation (see August 21; his fee from that has been estimated at $2 billion). But now the city’s best known corporate citizen, Microsoft, has quietly hired Berman to help it fend off the wave of class-action lawsuits it’s facing over its antitrust troubles. According to Forbes‘s “The Informer”, Berman and Microsoft chairman Bill Gates have become personal friends — notwithstanding a 1989 incident in which, following a sudden drop in the company’s stock price, Berman filed a lawsuit against the company and won $1.5 million. (Elizabeth Corcoran and Tomas Kellner, “The Informer”, Forbes, Feb. 7) (fourth item).
February 28 — Welcome Duke Law visitors. Overlawyered.com is the featured “site of the week” on the Duke Law School “Faculty and Staff Gateway” page.
February 26-27 — Legal ethics meet medical ethics. Two weeks ago, in preparation for his second murder trial on charges of pushing Kendra Webdale to her death on the New York subway last January, Andrew Goldstein went off his antipsychotic medication. Mr. Goldstein’s court-appointed lawyers “advised him to go off his drugs in an effort to demonstrate to the jury the debilitating effects of his mental illness”. Doctors treating the 30-year-old schizophrenic at Bellevue were strongly opposed to the tactic, and some outside observers were also skeptical, such as Columbia law professor Richard Uviller, who said “a lawyer’s first duty is to preserve his client’s health.” However, schizophrenia expert Dr. E. Fuller Torrey called the move legitimate and said he himself “had intentionally given homeless mentally ill patients less medication than they needed before court competency hearings to keep them from being released back onto the street.” Justice Carol Berkman of State Supreme Court in Manhattan “has said she would allow Mr. Goldstein to stop taking his medication for as long as he appeared competent to stand trial. If he appeared not to understand his surroundings, she ruled, he would be forcibly given his medication.” The new trial is expected to last at least a month; the first ended in a jury deadlock and mistrial. (David Rohde, “For Retrial, Subway Defendant Goes Off Medication”, New York Times, Feb. 23 — fee-based archive).
February 26-27 — “Judgment reversed in Seinfeld case”. “An appeals court on Tuesday reversed a $25 million judgment awarded to a man who was fired after a female co-worker complained that he harassed her by discussing a racy episode of ‘Seinfeld.’ … The ‘Seinfeld’ element of the case eventually became secondary and a Milwaukee County Circuit court dismissed a wrongful-firing claim.” Jerold Mackenzie had argued that his bosses at Miller Brewing Co. were already plotting to fire him from his $95,000-a-year management job at a time when they told him his position was safe. (Jenny Price, AP/Washington Post, Feb. 22, link now dead).
February 26-27 — Deep pockets blameable for denial of service attacks? PBS commentator Robert X. Cringely has posted a bunch of emails from his readers concerning the coordinated “distributed denial of service” attacks on major web sites earlier this month. Among them was the following from Jay Kangel: “At some point one of these hacking events is going to cost someone who can hire lots of lawyers with real money. At that point the victim, or the victim’s insurance company, will want to sue for damages. The actual hacker will likely have little or no money. Even if the victim wins such a suit the damages cannot be recovered. The deep pockets are the owners of the zombie machines. Is it negligence if a machine owner does not promptly install security patches and, as a result, hackers take over the machine? I don’t know….” (“The Cat is Out of the Bag”, I, Cringely: The Pulpit, Feb. 24).
February 26-27 — Mayors: liability fears stalling “brownfields” development. A report from the U.S. Conference of Mayors finds that liability fears are among major factors stalling redevelopment of “brownfields” (abandoned or underused industrial sites) in American cities. Environmentalists and urbanists consider brownfields an attractive alternative for new industrial development near the existing workforce, remedying eyesores and bolstering urban tax bases while avoiding development of peripheral vacant land around cities (“sprawl”). The open-ended liability inflicted by the Superfund program, however, menaces new developers, lenders, realtors and users with potential responsibility for the environmental sins of long-departed actors. (“Traci Watson, “Report finds more than 80,000 acres of polluted land in USA”, USA Today, Feb. 25, link now dead; report and news release).
February 25 — Music stores sue Sony. Candidate for the distinction of lamest business-vs.-business suit of the year? You be the judge. The National Association of Recording Merchandisers has filed suit against Sony for the purported offense of including hyperlinks and promotional inserts in or with its music products that enable/encourage consumers to use its online store, thus “diverting” them away from their destined role as future purchasers at the retail outlet. “Few retailers are happy about having to stock Ricky Martin CD’s with hyperlinks to Sonymusic.com [where customers can buy more CDs], but Sony hasn’t provided any alternative,” complains Pamela Horovitz of NARM. This practice amounts, says Horovitz, to “forcing retailers to steer their own customers to competitive sites”. “Forcing”? Well, it seems, the latest Ricky Martin album was just too darn popular for record stores to consider not stocking it by way of punishing Sony for its hyperlink policy.
The retailers insist that Sony has a legal obligation to make available to them CDs stripped of the capability to hyperlink to an online store, much as if newsstand distributors demanded that publishers supply magazines that were free of subscription cards (which of course tend to “divert” readers’ business from further newsstand purchases of the magazine). The complaint also charges Sony with “copyright misuse, illegal price discrimination by favoring its own record club and on-line music retailer (CDNow/ Columbia House) over other retailers, unfair competition, and false advertising.” (“Retailers Sue Sony”, Reuters/Wired News, Jan. 31; NARM press release, Jan. 31; Pamela Horovitz, commentary, Billboard, July 1999 (reprinted at NARM site, second item)).
February 25 — Not to be dismissed. Item from a recent (Jan. 27) edition of Chuck Shepherd’s News of the Weird, under the heading “Fireproof Workers“: “An arbitration panel ruled in July that Toronto Transit Commission janitor Winston Ruhle had been improperly fired and deserved about $115,000 (U.S.) in damages; he was fired in 1995 for padding his recuperation time after surgery, improperly missing 203 days during a 244-day period. And English chauffeur John Forbes, 55, won an employment tribunal ruling in September that it was unfair to fire him simply because he had twice dressed in women’s clothing on the job and flashed his underwear to passing motorists.”
February 25 — Secrets of class action defense. “Some companies facing a multitude of class actions have been accused of shopping for the cheapest settlements by choosing to deal with lawyers willing to seek less for class members, sometimes in return for a hefty legal fee,” reports the Mobile Register in its investigative series (see Feb. 7 commentary). For example, Norwest Financial was accused of overcharging for credit life insurance in a class action filed in Birmingham; it offered a settlement, which was rejected. It then struck a similar deal with a Mobile lawyer to settle the case on behalf of the same class. “‘Defendants can to some degree get different plaintiffs’ lawyers to bid against each other,’ said John Coffee, a professor at Columbia University in New York and expert on class action law. … If one plaintiffs’ lawyer drives a hard bargain and seeks a truly beneficial settlement for a class, a company may seek another lawyer and ask him to file a suit for the purpose of settling, and on terms the company dictates.
“Coffee said it’s ‘a game’ by which a defendant arranges for a plaintiffs’ attorney to agree to a ‘modest settlement for the class but very lucrative attorney’s fees. The defendant might even write up the complaint to make sure it’s competent and covers everything,’ Coffee said.” (Eddie Curran, “Judge: Mobile deal a ‘cheap ticket out of trouble'”, Dec. 27 (full series).
February 24 — Columnist-fest: liberal aims, illiberal means. Three variations on a theme, namely how progressive social goals aren’t always well served by handing ever-greater authority to those who run the legal process:
* Wendy Kaminer understands why feminists would rally behind the Violence Against Women Act, currently up before the Supreme Court in Brzonkala v. Virginia Tech, but wonders whether liberals should really be comfortable arguing for an expansive view of federal police power. “We need to combat sexual violence without making a federal case of it.” (“Sexual Congress”, American Prospect, Feb. 14).
* Stuart Taylor welcomes the idea of extending legal recognition in Vermont to same-sex relationships, but asks: should this advance really be put over by way of a unilateral assertion of power by the state’s Supreme Court? (“A Vote For Gay Marriage — But Not By Judicial Fiat”, National Journal, Feb. 21).
* William Raspberry agrees that loving relatives should be a part of kids’ lives, but still is mystified by the law under review in the Supreme Court’s pending Troxel v. Granville: “If you stipulate the mother’s parental fitness (as both sides seemed to do in last week’s questioning by the justices) then how can you insist that she bow to the grandparents’ desires — or even that she has to explain why she chooses not to?” (“Grandparents’ visitation rights case misses boat”, Detroit News, Jan. 18).
February 24 — House passes liability reforms. President Clinton is going to huff and puff and use his veto to blow down anything that looks like a shelter from the incursions of his good friends in the trial bar, which hasn’t deterred the House from passing two bills this month aimed at extending modest degrees of such protection to small businesses and manufacturers of long-lived capital goods. (“GOP makes little headway in reining in lawsuits”, AP/CNN, Feb. 22, link now dead). The small business bill would restrict punitive damages levied against enterprises with fewer than 25 employees to $250,000 or three times actual damages, whichever is less, and would require plaintiffs seeking punitive damages to show that a defendant acted with “willful misconduct and was flagrantly indifferent to the rights and safety of others.” (“House Passes Bill Shielding Small Businesses From Liability Suits”, DowJones.com, Feb. 16.) The durable-goods bill would bar suits against makers of factory equipment that were filed more than 18 years after the delivery of the equipment to its original user; it would not apply to workers who are ineligible for workers’ compensation. (Paul Barton, “House passes cap on makers’ liability”, Cincinnati Enquirer, Feb. 3). The two bills passed by almost identical margins — 221-193 for the small business bill, and 222-194 for the statute of repose bill — with about two dozen Democrats crossing over to join the GOP majority in favor, and about one dozen Republicans crossing the other way.
February 24 — Blaming good pilots. One of the first lawsuits arising from the Jan. 31 Alaska Airlines crash over the Pacific claims that “the pilots should have ‘immediately … land(ed) the aircraft upon first notice of difficulty in operation.’ … But the second-guessing, and the widow’s lawsuit, are wrong. The pilots did what they were supposed to: Analyze the situation, take corrective action, land as soon as practicable. Hurtling through the skies in a pressurized metal tube has its risks. Slapping the airline with a lawsuit won’t make those risks magically disappear. … The pilots were heroes, keeping their crippled plane over the ocean instead of slamming it into suburban Los Angeles.” (Phaedra Hise, “Aerial ambulance chasing”, Salon, Feb. 18) (more on overlawyered skies: Oct. 8, July 19, Dec. 1, Dec. 9, “Kingdom of the One-Eyed“, “Life, Liberty, and the Pursuit of a Good Beer“)
February 23 — Crime does pay, cont’d. A federal judge last week refused to dismiss a civil rights lawsuit by family members of a bank robber killed in a spectacular televised shootout with police in North Hollywood, Calif. Emil Matasareanu and Larry Eugene Phillips Jr. “fired more than 1,200 rounds from automatic weapons during a 44-minute battle on Feb. 28, 1997. Both men died, and 11 officers and a half-dozen civilians were wounded.” Attorney Stephen Yagman, representing the family, alleges that police violated Matasareanu’s rights by deliberately “keeping paramedics away from him for an hour as he died on the street….The city has contended that paramedics were needed elsewhere and that authorities initially feared Matasareanu might be booby-trapped.” (“Judge allows lawsuit to go forward in North Hollywood shootout case”, AP/FindLaw, Feb. 16).
February 23 — “How’s the pool?” “It’s okay, but what’s amazing about it is that its construction predates massive lawsuits, so it actually has a deep end. Where most new Las Vegas pools are only three feet deep, this one goes to twelve feet. The diving board has been removed, however.” — from a review of the Frontier Hotel on the website CheapoVegas.com. Better hurry, though: the review advises that “The Frontier is scheduled to be demolished in the summer of 2000”.
February 23 — That Hager case. The Washington Post‘s David Segal, who covered the lawyer beat for three years and has now moved on to write about music, last month penned a valedictory column which mentioned one of his regrets: not having taken a harder look at the disciplinary process for D.C. lawyers and in particular “the tale of Mark Hager, the American University Law professor and sometime plaintiffs lawyer.
“He represented a pair of Virginia mothers who wanted to sue Warner Lambert, makers of a lice shampoo, for creating an environmental hazard and for failing to rid critters from their children’s heads. In an out-of-court deal, Warner Lambert offered refunds to the moms and some 90 other buyers of Nix shampoo, a sum that totaled less than $10,000. Hager and a partner, meanwhile, ended up splitting the $225,000 that Warner Lambert paid on condition that the lawyers not bring another, similar suit and — here’s the kicker — not tell their clients about the bargain. (Hager countered that the deal was legit, in part because it doesn’t prevent his clients from suing Warner Lambert in the future. He also said the moms’ demand for a toxic tort-style suit was unreasonable.)
“The moms filed an ethics grievance and a hearing before a committee of the D.C. Board of Professional Responsibility — which recommends disciplinary action — occurred in January. Not a peep has been heard from that committee since, even though it’s supposed to cough up a recommendation within 60 days.”
Concludes Segal: “That’s an outrage. If Washington lawyers want the trust of their clients and abiding respect from the rest of us, devising a more efficient policing mechanism might be a good start.” (Update May 3, 2001: disciplinary panel in Nov. 2000 called Hager’s conduct “shockingly outrageous” and recommended three-year suspension) (Update Jul. 19, 2003: Hager resigns AU post in April 2003).
SOURCES: David Segal, “Hearsay: Verdicts Rendered, a Beat Surrendered”, Washington Post, Jan. 17; David Segal, “Group Says Lawyer Made Secret Deal”, Washington Post, November 4, 1998, and Siobhan Roth, “American University Professor Faces Ethics Charges, Legal Times, Jan. 18, 1999, both reprinted at headlice.org site; “‘Settlement’ in lice shampoo case probed”, AP, Jan. 27, 1999, reprinted at “Safe 2 Use” commercial page; Goldie H. Gider, “Law Professor Faces Ethics Charges”, The Legal Reformer (HALT), Spring 1999 (second item); Deborah Kelly, “Lice infestations on the rise”, Richmond Times-Dispatch, May 29, 1997. In addition to publishing in such outlets as Monthly Review and Z Magazine, Prof. Hager has also distinguished himself for the vehemence of his attacks on liability reformers; see, for example, “Civil Compensation and Its Discontents: A Response to [Peter] Huber,” 42 Stanford Law Review 539 (1990) (not online).
February 23 — “Quadriplegic is given 7 years in prison for selling marijuana”. In another triumph for the drug war, a federal court has sentenced Louis E. Covar Jr., 51, to prison for seven years. Covar, a wheelchair user who cannot control his muscles beneath his shoulders, says he uses marijuana for medicinal purposes but police testified that he was selling it, in violation of probation terms for a conviction for marijuana possession last March. “According to the Department of Corrections, the special care Covar will need will cost $258.33 a day — or more than $660,000 if he serves his full seven years. A typical prisoner costs taxpayers $47.63 per day.” Federal judge J. Carlisle Overstreet said he was aware of the cost-of-custody problem but said Covar had showed “blatant disregard for the law”. (AP/Deseret News, Feb. 19).
February 23 —Overlawyered.com sets new visitor record. Yesterday was our busiest day ever, thanks in large part to the Wall Street Journal‘s generous editorial mention and the live link in its interactive edition.
February 22 — Welcome Wall Street Journal readers. In an editorial (“Virtual Sanity“) hailing the anti-food-scare Guest Choice Network, the Journal says that “overlawyered.com, a site run by Walter Olson to track the excesses of the lawsuit industry” is one of “a new breed of Websites… cropping up to keep tabs on the army of lawyers and activists”. (“Virtual Sanity”, Wall Street Journal, Feb. 22 (online subscription required)).
February 22 — Against medical advice. Ignoring the advice of both his own subordinates and the medical profession, President Clinton is expected today to unveil a package of measures aimed at combating “medical errors” among doctors, hospitals and other medical providers. The most controversial measure would subject providers to legal sanctions if they fail to report such errors. Since there’s often much doubt as to whether a particular incident constituted error and whether it contributed to a patient’s bad outcome, institutions could stay out of legal danger only by reporting as “error” many incidents that they might not be convinced are such. Despite supposed safeguards for privacy, the New York Times reports, it will often be possible for outsiders to identify the names of patients and doctors involved, and “public reports could be used to strengthen the hand of plaintiffs’ lawyers in malpractice lawsuits.”
The proposals follow a stampede set off by the release of a federally sponsored study which found high rates of avoidable injury to patients in the medical system. (For skeptical looks at the same Harvard-based researchers’ earlier allegations of an “epidemic” of medical malpractice, see Richard Anderson, 1996, and Peter Huber, 1990 and 1997). Both the American Medical Association and the American Hospital Association have warned that, to quote the Times, “if doctors and hospital employees fear being sued…they will be reluctant to discuss the lessons that could be learned from their mistakes.” Also conspicuous by its absence is any evidence that federally managed health care facilities, such as Veterans’ Administration hospitals, are presently achieving more success at avoiding errors than private hospitals, or any demonstration of why Washington should be imposing untried changes on private hospital management when it has as yet done nothing to demonstrate the workability of the proposed changes in its own facilities.
Indeed, “[e]ven Mr. Clinton’s own advisers had suggested that the administration move cautiously.” Instead, Clinton — fresh from a $500,000 trial-lawyer-hosted fund-raiser in Dallas two weeks ago — overrode their advice. He also insisted that an additional principle be part of the package: no matter how many rights doctors and hospitals are made to give up, no jot or tittle of the right to sue doctors or hospitals for malpractice may be interfered with. (Robert Pear, “Clinton to Propose a System to Reduce Medical Mistakes”, New York Times, Feb. 22 (requires registration)).
P.S.: For the past year, having abruptly reversed its earlier stance of resisting the expansion of litigation, organized American medicine has been cheerleading the trial lawyers’ assault on HMOs; the Connecticut State Medical Society, for example, recently sponsored trial lawyer bigwig Richard Scruggs to come to the state to talk up the subject. This could be seen as a kind of experiment: with the trial lawyers receiving such extraordinary and unexpected assistance from their old enemy, would they ease off on their litigation war against the doctors themselves? The Clinton initiative provides a definitive answer to that question: no, they won’t. (Edward J. Croder, “$300 million lawyer revs up to take on HMOs” (Scruggs speech at Quinnipiac College School of Law), New Haven Register, Feb. 11 — not online)
February 19-21 — “Deaf group files lawsuit against movie theaters.” Invoking the Americans with Disabilities Act, eight hearing-impaired persons in Portland, Oregon have filed what aspires to the status of a national class action seeking to force three large cinema chains, Regal, Century, and Carmike, to install closed captioning devices for films in their theaters. The technology, called MoPix, displays captions in a patron’s cupholder; the plaintiffs say it costs about $12,000 a screen to install. A spokesman for the suit, attorney Dennis Steinman, said the country’s biggest cinema chain, Cinemark, was likely to be added soon to the case as a defendant. (Ashbel Green, “Suit seeks to aid deaf moviegoers”, The Oregonian, Feb. 4).
February 19-21 — Bountiful NYC taxpayers come through again. It happened in 1989: Driver Jack Goldberg, under the influence of heroin, cocaine and methadone, lost control of his car and ran onto a Brooklyn sidewalk, gravely injuring Linda Davis, who’d been waiting with her daughter and grandson to catch a bus. Pleading guilty to assault, Goldberg was sent to prison for two years. But the blame could hardly be allowed to stop there, especially not when a far deeper pocket was on hand. Mr. Goldberg proceeded to aver that he’d swerved to avoid a city sanitation truck that was entering the intersection against the light. This theory outraged city officials, who according to the New York Law Journal “contended that Mr. Goldberg admitted at his deposition that he did not recall even seeing the truck in the area and that he had swerved to avoid striking a boy who had run into the street half a block away.” Nonetheless, on December 16 a Kings County jury proceeded to find the city 23 percent culpable for the incident and hand down a $16 million verdict in the suit brought by Ms. Davis and her relatives; joint and several liability should do the rest. (“Verdicts and Settlements”, New York Law Journal, Jan. 28, not online).
February 19-21 — Harassment-law roundup. A new product called Disappearing Email is set to launch next month which automatically “shreds” and destroys email after a certain length of time as determined by company policy; the target market is companies worried that internal emails will be used against them by lawyers in harassment or other types of litigation. (“Email’s Vanishing Act”, Wired News, Feb. 7). Meanwhile, the Industry Standard takes a look at the widely publicized sexual harassment lawsuits filed by two employees against Juno, the Internet start-up. (Susan Orenstein, “What happened at Juno”, The Standard, Feb. 7). And at Intellectual Capital, reader discussion is in progress about Joan Kennedy Taylor’s book What to Do When You Don’t Want to Call the Cops: A Non-Adversarial Approach to Sexual Harassment, excerpted briefly in this space in November. (Jaime Sneider, “Above the Law?”, Intellectual Capital, Feb. 17).
February 19-21 — Welcome Lucianne.com, Crikey.com.au readers. Readers of Lucianne.com, the popular news forum presided over by Zippergate stalwart Lucianne Goldberg, recently discussed our commentaries “Bill Clinton among friendly crowd” and “Thanks for the memories” (links now dead). And an influx of visitors from Australia over the last week or so owes much to our inclusion as a link on Crikey.com.au, an irreverent investigative site that covers media, government and business down under.
February 19-21 — “Motorists speed more, but fewer die”. When Congress did away with the national 55-mph highway speed limit, opponents called it a “killer bill”; Advocates for Highway and Auto Safety — a be-safe-or-else coalition backed by both insurance companies and the trial-lawyer-allied Ralph Nader complex — predicted that the move “will be the death knell for thousands of American men, women and children“. But in fact “the national crash fatality rate, determined by the number of fatalities for every 100 million vehicle miles driven, has fallen by 11 percent since the United States lifted the national 55 mph speed limit in 1995”. (Tom Greenwood, “Motorists speed more, but fewer die”, Detroit News, Jan. 4; Brock Yates, “Just when you thought bigger was better”, Car and Driver, Oct. 1999, reprinted at Steve Hartford site).
February 19-21 — Update: Cayuga land claim. A Syracuse, N.Y. jury has recommended an amount of $36.9 million as appropriate compensation to the Cayuga Indian tribe for its sale of 64,015 acres to the state of New York two centuries ago. The sum was far below the $335 million sought by the Cayugas and below even the $51 million recommended by appraisers for the state, which was the defendant in the suit. Cayuga attorney Martin Gold lashed out at the ruling as “ridiculous…Apparently nine people didn’t pay attention to the evidence.” The 1795 and 1807 sales were recently declared invalid because they were not approved by the federal government, as required by law (see Feb. 1 commentary). Jim Memmott, “Verdict saddens Cayugas”, Rochester Democrat & Chronicle, Feb. 18.)
February 18 — Bush unveils legal reform plan. On the campaign trail last week, Texas Gov. George W. Bush unveiled proposals for reforming the civil justice system if he’s elected President. (Disclosure: this site’s editor has served as an unpaid advisor to the Bush campaign on the issue.) The proposals include: tougher sanctions for meritless lawsuits and motions; a “Fair Settlement Rule” under which parties who reject a bona fide settlement offer and then do worse at trial will be liable for the reasonable legal fees their opponents expended after the offer; curbs on lawyers’ power to steer actions into courts they view as favorable (“forum-shopping”); a “Client’s Bill of Rights” prescribing more disclosure about fees to be charged and enhanced supervision by federal courts of fees charged in the cases they oversee; and controls on unreasonable fees charged by lawyers representing government bodies. (“Bush proposes higher standards for lawyers”, Reuters/FindLaw, Feb. 9; campaign news release, Feb. 9; fact sheets on tort reform and on Texas record (PDF format); Morton Kondracke, “Bush’s Trial with the Trial Lawyers”, June 28, 1999 (reprinted at Citizens Against Lawsuit Abuse Houston site)).
February 18 — I see riches in your future. ABC has confirmed that it has paid $933,992 to an employee of the Psychic Services Network who sued the network over its 1993 airing of a secretly made videotape on its newsmagazine “PrimeTime Live”. Mark Sanders charged that ABC had ruined his reputation by covertly videotaping him and his colleagues working the telephones in a show aimed at depicting the call-a-psychic business as “a scam and illegitimate”. In 1994 a jury awarded Sanders $335,000 in compensatory and $300,000 in punitive damages, and the total sum owing has mounted through the accumulation of interest as ABC has pursued unsuccessful appeals. (Yahoo/AP, “ABC Pays Damages to Psychic Network”, Feb. 15, link now dead).
February 18 — Lawsuit reform helps Michigan taxpayers. The state’s payout in judgments and settlements, which had been running around $25 to $35 million a year, declined to $12.7 million last year. Democratic state attorney general Jennifer Granholm credited skillful legal work and good economic times for the favorable trend but also, significantly, acknowledged the helpful role of 1995 reforms which bolstered sovereign immunity and curbed the application of joint and several liability, the deep-pocket doctrine by which a defendant one percent responsible for an accident can be made to pay all the damages. (“Tort reform pays off” (editorial), Detroit News, Feb. 2).
February 18 — The trouble with bounty-hunting. “Porcupines [in New England] have never enjoyed the popular status of, say, the armadillo in Texas. They were particularly unpopular earlier in this century, when they returned to reforested areas ahead of their natural predators and consequently boomed. John Barrows, a district forester with the state of Vermont, recalls that Vermont used to offer a bounty of fifty cents for a set of porcupine ears, and in 1952 paid out $90,000. Remarkably, it still had a porcupine problem in 1953 and for several decades thereafter. Barrows explains: ‘There was a time when we thought the state had a lot of money, and a trapper who knew how to use his knife could get ten or twelve sets of ears out of a single animal.'” — from Richard Conniff, Every Creeping Thing: True Tales of Faintly Repulsive Wildlife (Henry Holt & Co., 1998).
February 17 — And so now everybody’s happy. “Last month, the Supreme Court decided not to review an appeals court decision that temporary Microsoft workers must receive the same retirement benefits, including discounted stock, as regular employees…. Already, some companies have reacted to the original Microsoft decision by getting rid of temporary workers before they can be considered permanent, lawyers said.” (David Leonhardt, “Who’s the Boss? Who’s a Worker?”, New York Times, Feb. 16) (& see letters, Dec. 20).
February 17 — Barrel pointing backward. “President Clinton enthusiastically backs the current wave of municipal lawsuits against the gun industry”, yet he’s also proposed giving $10 million in taxpayer money to some of the same manufacturers for the sake of developing so-called smart guns. Some litigation advocates are upset about the inconsistency, including Kristen Rand of the Violence Policy Center, who says: “It makes the lawsuits seem like a charade.” Yes, now she’s getting the idea.
The litigation onslaught may in fact have retarded progress toward smart-gun technology. Colt’s Manufacturing Co. had been at work on a smart-gun venture but folded its effort late last year; the Wall Street Journal’s Paul Barrett quotes John Rigas, a partner in the company’s controlling owner, the New York investment group Zilkha & Co., as saying that “potential punitive damages scared away needed outside investors”. (Paul M. Barrett, “‘Smart’ Guns Trigger a Debate”, Wall Street Journal, Jan. 27 (requires online subscription).)
February 17 — Welcome Kausfiles.com readers. Mickey Kaus’s commentaries on politics, journalism and social policy, among the high points of Slate, are also collected on this freestanding website. He’s just added new features including a desktop-style assortment of columnist and policy links. Check out the ultrabrief descriptions (for this page: “Daily horror stories”.)
February 17 — The fine print. The Boston Globe has backed off at least temporarily from a short-lived effort to save money, trees and ink by reducing the type size of its articles, thus squeezing more onto a page. Readers had protested vociferously, and at least one threatened to sue under the Americans with Disabilities Act: “The Globe cannot simply refuse to serve readers with aging eyes and poor eyesight.” (Jack Thomas, “The incredible shrinking type irks Globe readers”, Boston Globe, Feb. 14, link now dead (via Romenesko, Media News)).
February 17 — Let your fingers do the suing. The Yellow Pages contain many entries for businesses like the A-ABC Locksmith Service and AAA Affordable Auto Glass, and now you can add to that list of eagerly promotional trade monickers the AAAA Legal Center, run by Detroit-area trial lawyer Robert D. Mouradian, though its website has not been updated since April 1999 and could use a spell-check.
February 16 — Welcome Fox News Channel visitors. Our editor was interviewed for a story on how the Americans with Disabilities Act may require the redesign of websites so as to provide “reasonable accommodation” to blind, deaf and other handicapped users. For more details, see his prepared statement presented to a House Judiciary Committee hearing last week; our Dec. 21 commentary, and our subpages on disabled-rights law and Internet law.
February 16 — Update: Connecticut tobacco-fee bonanza. Not long after Connecticut attorney general Richard Blumenthal said last winter he had “no idea” whether law firms were going to rake in excessive fees representing the state in the tobacco settlement (see Feb. 3 commentary), a total fee haul was announced: a handsome $65 million. As previously reported in this space, the three lucky firms selected to handle the in-state work included Blumenthal’s own former law firm of Silver, Golub & Teitell of Stamford. The other two firms? One was Carmody & Torrance of Waterbury, whose managing partner James K. Robertson is personal counsel and counselor to the state’s governor, John Rowland. And the third was Stamford’s Emmett & Glander, whose name partner, Kathryn Emmett, happens to be married to partner David S. Golub of Silver, Golub & Teitell. “I know how it [looks]”, concedes Golub.
A number of other firms that wanted to be considered for the work were cut out; Robert Reardon of New London, a former president of the Connecticut Trial Lawyers Association, couldn’t get even get in the door for a meeting. Though Attorney General Blumenthal was later to disclaim knowledge of the firms’ fee entitlements, the Connecticut Law Tribune reports that he “was extraordinarily active in the litigation and settlement — more so than any other attorney general”. (Thomas Scheffey, “Winning the $65 Million Gamble”, Connecticut Law Tribune, Dec. 8; “After the Lion’s Share”, Feb. 5).
February 16 — Disabled test-accommodation roundup. Salon is the latest to notice this issue. While the share of students getting extra time on the SAT — typically an extra hour and a half on a three-hour exam — is still only 1.9 percent nationwide, “the number jumps to nearly 10 percent in some New England prep schools and wealthy districts in California.” Michael Scott Moore, “Buying Time”, Salon, Feb. 9). AP reports that the percentage of college freshmen describing themselves as disabled more than tripled between 1978 and 1998, from less than 3 percent to 9.4 percent. Forty-one percent of the disabled freshmen in 1998 identified their impediment as a learning disability, up from 15 percent ten years earlier. More chances to attend college for kids who’d have been classified as disabled all along — or just more students being classified as disabled? (“Learning Disabled Advance in School”, AP/FindLaw, Feb. 10). In a case closely watched by college officials, a Boston College senior with attention deficit disorder and a 3.35 grade point average “has sued the Law School Admissions Council, charging the national testing giant violated her rights by denying her extra time to take the all-important exam.” (Andrea Estes, “BC student sues test firm: Wants more time for law school exam”, Boston Herald, Jan. 12).
November 30 — Class-action fee control: it’s not just a good idea, it’s the law. A panel of the Ninth Circuit U.S. Court of Appeals has ruled that judges have a positive duty to scrutinize and, where appropriate, reduce attorneys’ fees in class actions, independently of whether anyone with appropriate standing raises an objection. The case arose after a Los Angeles federal district judge approved nearly $3 million in legal fees to the plaintiff’s firm of Weiss & Yourman in a shareholder class action against Occidental Petroleum, which had cut its dividend in alleged breach of an earlier promise not to do that. The case was settled by Occidental’s agreement to maintain more lucrative dividend payouts in the future and pay legal fees to the plaintiff’s firm; no cash recovery was had by shareholders.
Noted class-action objector Lawrence Schonbrun then appeared on behalf of a class member to challenge the fee payout as excessive; his arguments proved sufficiently persuasive that the judge eventually cut Weiss & Yourman’s fee by more than half, to $1.15 million. The law firm appealed, arguing that because its fee was the result of a separate side-deal with Occidental, rather than being deducted from a payout to the class, an individual class member (such as Schonbrun’s client) had no standing to object. This line of argument has been routinely offered in defense of “separately negotiated fee” class-action settlements, and it has a remarkable implication, namely that once the two sides’ lawyers have cut their deal behind closed doors, no one in the client class has any right to raise an objection to the fees obtained for representing them. Fees for representing a class, yet with no worry that anyone in the class will be able to bring a challenge to those fees — why, it’s like magic!
A little too magical for the Ninth Circuit: a “client whose attorney accepts payment, without his consent, from the defendants he is suing, may have a remedy,” wrote Judge Andrew Kleinfeld last month on behalf of a unanimous panel that also included Judge Alex Kozinski and Oregon district judge Owen Panner, sitting by designation. “The absence of individual clients controlling the litigation for their own benefit creates opportunities for collusive arrangements in which defendants can pay the attorneys for the plaintiff classes enough money to induce them to settle the class action for too little benefit to the class”. That’s where “the supervisory power of the district court” should come in, as “a mechanism for assuring loyal performance of the attorneys’ fiduciary duty to the class.” (Paul Elias, “$2 Million Fee Reduction Stands in Securities Case”, The Recorder/Cal Law, Oct. 20 — full story).
November 30 — Leave that mildew alone. It’s illegal to market “mildew-proof” paint for bathrooms and damp basements unless you go through the (extremely expensive) process of registering the paint as a pesticide, claims the federal Environmental Protection Agency, which is seeking $82,500 in penalties from William Zinsser & Co., Inc., a Somerset, N.J.-based paint manufacturer. (EPA Region 2 press release, Nov. 10).
November 30 — Update: sued columnist still disrespecting local attorneys. As reported earlier in this space, Swansea, Ill. lawyers Judy Cates and Steven Katz have filed a lawsuit demanding $1 million from St. Louis Post-Dispatch columnist Bill McClellan after a column in which he criticized their handling of a class-action suit against Publisher’s Clearing House and jocularly compared them to the James Gang of bank robbers (see Nov. 4 commentary). You’d think McClellan would have learned his lesson by now, especially with the case still pending, but no, he’s had the temerity to write another column criticizing the same lawyers, this time pointing out that numerous state attorneys general have intervened to fault their proposed settlement of the magazine-subscription suit. (“Regardless of suit result, my lawyers will have work”, Nov. 21 — full column)
November 29 — New subpage: Our overlawyered schools. Compiling news clips and commentaries on the legal headaches that beset teachers, students, principals, faculty and university administrators. Highlights include our ever-popular Annals of Zero Tolerance, special ed and the ADA, Title IX (From Outer Space), the role of litigiousness in undermining supervised recreation, the paralytic contribution of tenure laws, and other trends that tend toward the merger of schoolhouse, courthouse and madhouse.
November 29 — “Some lawyers try to make nice”. “Soon after EgyptAir Flight 990 plunged into the Atlantic Ocean, the personal-injury lawyers at R. Jack Clapp and Associates marshaled their resources and mobilized their forces. Faster than you can say class-action lawsuit, the Washington, D.C., firm, which specializes in aviation disasters, launched EgyptAir990.com — a Web site that at first blush appears primarily concerned with helping the bereaved deal with loss, but on closer examination is all about financial gain.” New York Times writer David Wallis devotes a “Week in Review” roundup to the legal profession’s efforts to repair its “sorry” image, lately impaired “by tacky late-night commercials for ambulance chasers; the legal lobby’s opposition to tort reform; and the one-two punch of the O.J. Simpson trial and the Monica Lewinsky scandal.”
The Ohio Bar, meanwhile, has sponsored a TV spot in which two children explain at school what their parent does for a living: one says his father “protects people”, like a police officer, and another says her mom “helps sick and hurt people”, like a doctor. It turns out that they’re . . . lawyers. So what is it that the opposing side’s lawyers do for a living? (David Wallis, “Some Lawyers Try To Make Nice”, New York Times, Nov. 28 — full story)(free, but registration required).
November 29 — “Wretched excesses of liability lawsuits”. Op-ed by the Philadelphia Inquirer‘s David Boldt looks at “the ever-expanding litigation explosion” by way of some recent automotive cases, including the class action against DaimlerChrysler that recently resulted in a countersuit by the company (see November 12 commentary). On this summer’s Chevy Malibu verdict in Los Angeles, in which a jury voted $4.8 billion against General Motors, later reduced by a judge to $1.1 billion, Boldt offers a point of comparison we hadn’t previously seen: “The impact [of the Chevy’s 70 mph rear-ending by a drunk driver] was the equivalent of dropping the car from the top of a 16-story building.”
Many accept the idea that the litigation boom offers compensating benefits — for example, “that our lives are made safer by the system because it makes companies more careful. Interestingly, there is no known evidence for this.” Boldt cites the Brookings Institution’s study “The Liability Maze” of eight years ago. “The editors — Peter Huber of the Manhattan Institute and Robert Litan of Brookings — wrote that none of the authors had found a demonstrable improvement in safety for Americans compared with nations that have less stringent liability-law systems. Nor did the authors find that the increase in liability suits had accelerated a decline in U.S. accident rates. I can find no subsequent study that has contradicted these conclusions.” (David Boldt, “We all end up paying for a litigious society”, reprinted in Baltimore Sun, Nov. 24).
November 26-28 — Oh, well, better luck next time. Illinois courts reviewing capital sentences “have repeatedly expressed dismay at the representation received by Death Row inmates at trial,” and this Chicago Tribune investigation brings to light a sad array of ways lawyers can drop the ball at a time when clients need their help most: missing deadlines, failing to develop exculpatory evidence, alienating judges, neglecting to disclose conflicts of interest, and much more. “Since Illinois reinstated capital punishment in 1977 . . . 33 defendants sentenced to death were represented at trial by an attorney who had been, or was later, disbarred or suspended — disciplinary sanctions reserved for conduct so incompetent, unethical or even criminal that the state believes an attorney’s license should be taken away.” If lawyers can perform this sloppily even when a client’s life is at stake, what must they be getting away with in lesser cases? (Ken Armstrong and Steve Mills, “Inept Defenses Cloud Verdicts”, Chicago Tribune, Nov. 15).
November 26-28 — Beware of market crashes. “Online brokerages are ‘probably’ financially responsible for computer outages that leave their customers unable to trade,” Securities and Exchange Commission Arthur Levitt said this week. Executives at online trading firms, reports the New York Post‘s Jesse Angelo, “are terrified of lawsuits from customers claiming they lost money due to computer glitches. E*Trade has already been slapped with such a suit by an Ohio woman who attributes $40,000 in losses to computer problems at the online trading site. The suit seeks class-action status”. (Jesse Angelo, “Levitt: Web Brokers May Be on the Hook for Computer Crash”, New York Post, Nov. 23).
November 26-28 — Update: cannon shot OK. Administrators at Nevis High School in Minnesota have relented and agreed to permit a yearbook photo of Army enlistee Samantha Jones perched on a cannon draped with a U.S. flag, despite a policy of “zero tolerance” of depictions of weapons (see Oct. 30-31 commentary). “More than 100 students walked out of class Nov. 3 to protest the ban on the photo, leading to 50 suspensions,” AP reports. (“Fight over yearbook photo ends”, AP/Washington Post, Nov. 25 (link now dead)).
November 26-28 — Weekend reading: evergreens. Pixels to take to the mall or to peruse while resting off the big meal:
* Out-of-state defendants sued for more than $75,000 in a state court should be able to choose removal of the suit to a U.S. district court with its greater objectivity between local and nonlocal litigants, argues Phelps Dunbar partner Michael Wallace in one of the more promising proposals for liability reform we’ve heard in a while (Michael Wallace, “A Modest Proposal for Tort Reform“, from vol. 1, issue 3 of Federalist Society Litigation Working Group newsletter; at Federalist Society website).
* How to tell you’ve been the victim of a staged car accident: tips from a local CBS-TV affiliate’s story on “Los Angeles’ most unlucky driver” (you’re driving alone in a newer car, someone in one vehicle distracts your attention, a second older car with several passengers gets in front of you and suddenly slams brakes, none of the alleged victims carry photo IDs) and from investigator Jack Murray’s book on the subject (the incident occurred midblock, not in rush hour and with no eyewitnesses, struck vehicle “has had tire pressure in the rear tires lowered (causes more taillight damage and stops more quickly)”. (“Special Assignment: Staged Accidents“, Channel2000.com, March 28, 1998; Jack Murray, “Red flags: a 14 point checklist“, not dated, National Association of Investigative Specialists website).
* “Procedures And Rules Regarding Suits Against Public Entities” — well, okay, it’s a dry title for an undeniably dry outline of the steps involved in extracting money from City Hall, but you’ve got to admit it bears an interesting byline: Johnnie L. Cochran, Jr., whose success in litigating personal-injury cases both preceded and followed his better-known role in assisting O.J. Simpson to walk free of murder charges (website of California law firm Kiesel, Boucher and Larson LLP — full paper, undated).
November 24-25 — Don’t redeem that coupon! Under the heading, “Free money for doing nothing”, financial commentator Andrew Tobias writes, “If you’ve ever owned a Toshiba laptop — I’ve owned two — apparently you’re in line for $200-$400 because Toshiba has to pay us $2 billion because . . . well, because . . . I’m actually not going to claim my prize, because it doesn’t feel right. But, as noted over on overlawyered.com, it makes an interesting story.” (AndrewTobias.com, Nov. 24). Our coverage of the Toshiba laptop settlement ran Nov. 3, Nov. 5, Nov. 17 and Nov. 23.
November 24-25 — From our mail sack: memoir of a morsel. We’ve generally refrained from publishing on this site the many letters people send us describing their horrible personal experiences in court. Just this once, we’re going to break that rule and run this one from Paul Boyce of Tustin, Calif.:
“I am a small businessman, owner of a 3-employee business helping companies with their carpool programs (one of those employees is my wife). We were sued by an employee for wrongful termination 5 years ago, at a time when we had six employees. She had been working for me for only 6 months when I let her go. We went into binding arbitration, supposedly a low cost alternative to a jury trial. I lost. With penalties and interest, the judgment came to over $240,000. In 1998, I filed for Chapter 7 liquidation bankruptcy — there was no way I could pay that much! In fact, business revenues were down to 1/5 of what they were when she sued me. Last year I earned $60,000. My lawyer’s fees came to $55,000.
“In the bankruptcy, the only asset we had was our small-business retirement plan savings, amounting to about $350,000. What was astonishing was that the judge said that because my wife and I are in our mid 40s, we didn’t need the $350,000 — we could easily make it up! He based this on tables showing how long we could be expected to live versus how much we could be expected to make at hypothetical government jobs. So he ordered our retirement plan be handed over to the contingency fee lawyers to be split up. We’ve asked around and the best we can tell, the employee who sued us 5 years ago will get maybe $35,000 for her efforts. We counted a total of 4 contingency fee lawyers on her side.
“The result of all this is that I’ve decided to close the office and lay off my only employee. It’s just a lot easier and less risky to run the business out of our home.
“The legal system, with its strong preference for feeding the lawyers at the expense of morsels like me, shows me how far astray from the constitution our great country has strayed. It’s a parody of what the founding fathers had in mind when they clearly expressed their historic vision. Today, it’s all about the lawyers and how clever they are at shifting even more wealth their way.”
Paul and Sandy Boyce can be reached at Commuter Services Group, Tustin, CA.
November 24-25 — CNN “Moneyline”. Watch for our editor as a likely guest on this evening’s (Wed., Nov. 24) CNN Moneyline, discussing the continuing lawsuit boom.
November 23 — Class actions vs. high tech. “It had to happen: America’s most successful industry, high technology, is under sustained assault from America’s second-most successful industry, litigation.” The editor of this website has an op-ed in this morning’s New York Times, tackling the Microsoft and Toshiba class actions. (Walter Olson, “A Microsoft Suit with a Sure Winner”, New York Times, Nov. 23).
November 23 — Soros as bully. Add another prominent name to the list of philanthropists (see September 2 commentary) bankrolling the lawsuits that are fast driving family-owned gunmakers into bankruptcy: wealthy financier George Soros, who according to a Wall Street Journal report last month has donated $300,000 to keep the Hamilton v. Accu-Tek litigation going and also provided financing for the NAACP’s suit against gunmakers. (Paul M. Barrett, “Evolution of a Cause: Why the Gun Debate Has Finally Taken Off”, Wall Street Journal, Oct. 21)
November 23 — Update: too obnoxious to practice law. The Nebraska Supreme Court has now heard the case of Paul Converse, who wants to become a lawyer though the state bar commission says he’s behaved in an “abusive, disruptive, hostile, intemperate, intimidating, irresponsible, threatening or turbulent” manner in the past (see Oct. 13 commentary). Last week the court agreed that Converse “seeks to resolve disputes not in a peaceful manner, but by personally attacking those who oppose him in any way and then resorting to arenas outside the field of law to publicly humiliate and intimidate those opponents.” Notwithstanding these high qualifications to practice in certain fields of American law, it turned down his application. They sure do things differently out in Cornhusker land (Leslie Reed, “Court: Law Grad Unfit for Nebraska Bar”, Omaha World-Herald, Nov. 20, link now dead)
November 23 — Get off my jury. “To win a decent verdict, Mr. Rogers [Chicago attorney Larry R. Rogers, Sr., who won $10.4 million for a client after a serious traffic accident] had to select the right jury…He never wants people from the banking industry, accountants and people in investment professions on his juries: ‘These people tend to think about the power of money, that if you give someone $100,000 and they invest it, it will earn something. They won’t give you full compensation for the injury.’ He was also sensitive to keeping off jurors who are anti-lawsuit: ‘I ask them is there anything they’ve heard in the media, in newspapers, about tort reform.’ …’They liked [his client], and juries tend to award damages to people they like.” (“Proving worth isn’t age-related” (profile of Larry R. Rogers Sr.), National Law Journal, Oct. 4.)
November 22 — From the planet Litigation. Courtroom jousting continues between a group that calls itself Citizens Against UFO Secrecy and the U.S. Department of Defense over CAUS’s charges that DoD has covered up incidents of possible intrusion by extraterrestrial spacecraft. CAUS has sued the government a half-dozen times over its alleged unresponsiveness to Freedom of Information Act (FOIA) requests regarding UFO sightings; on September 1 it added a complaint that the government has fallen short of its responsibilities under Article IV, Section 4 of the Constitution to defend the nation’s territory against foreign invasion. CAUS executive director Peter Gersten filed the action in his home state of Arizona, which “is definitely a targeted area for the clandestine intruders,” and is contemplating follow-on suits in New York and California. “I can prove in a court of law, and beyond a reasonable doubt, that we are in contact with another form of intelligence,” he says. CAUS’s site reprints affidavits, motions and other documents from the case, including illustrations of UFO sightings in Corpus Christi, Tex., Pahrump, Nev. (link now dead), and Seattle. (Robert Scott Martin, “CAUS Sues U.S. Over Secrecy”, Space.com, Sept. 1, link now dead; CAUS Sept. 1 press release.)
In a separate action, UFO researcher Larry Bryant of Alexandria, Va., who’s served as CAUS’s Washington, D.C. coordinator, has prepared a petition charging Virginia authorities with shirking their constitutional obligation to safeguard citizens from invasion by foreign powers. Bryant says Virginia governor James Gilmore III “knows that it’s against the law to abduct, torture, falsely imprison, wantonly impregnate and unconsensually surgically alter (via implants) a person. He also knows that he has the power to repel these invasive activities of apparently alien-originated UFO encounters.” Described by Space.com as a retired writer and editor of military publications, Bryant “takes pride in having ‘filed more UFO-related lawsuits in federal court than has anyone else in the entire universe.'” (Robert Scott Martin, “UFO Invasion Outcry Spreads to Virginia”, Space.com, Sept. 10, link now dead.)
CAUS’s Gersten has also described as “gratuitously demeaning”, probably “defamatory” and “actionable” an ad for Winston cigarettes this summer which made fun of alien-abduction believers, but declined to pursue legal action against the cigarettes’ maker, R.J. Reynolds. (“Cigarette Ad Sparks UFO Controversy”, Space.com, Sept. 28; “UFO Lawyer Unlikely To Sue Tobacco Company over Ad”, Oct. 1, links now dead).
November 22 —Vice President gets an earful. “One employee summed up the anguish over the case, saying, ‘when I read what the government says about Microsoft, I don’t recognize the company I work for.’ Another bitterly complained that the many subpoenas of Microsoft e-mail had invaded employees’ privacy more than any government wiretap, ‘so that sharp lawyers can cut and snip bits of e-mail to construct whatever story they want’ in court. ‘We bugged ourselves’.” John R. Wilke, “Gore, Addressing Microsoft Staff, Defends Nation’s Antitrust Laws”, Wall Street Journal, Nov. 16).
The New York Times is reporting that class-action lawyers on the West Coast will sue Microsoft as early as today on behalf of a class of California end-users of Windows 95 and 98. The suit, which will ask treble damages for alleged overcharges, will be filed on behalf of a statewide rather than nationwide class because the U.S. Supreme Court’s 1977 Illinois Brick decision disallows federal antitrust actions on behalf of indirect purchasers of goods (most Windows users buy it preloaded on their machines, rather than direct from Microsoft). However, 18 states including California and New York have enacted statewide laws allowing such suits. (Steve Lohr, “Microsoft Faces a Class Action on ‘Monopoly'”, New York Times, Nov. 22 — free, but registration required).
November 22 — Great moments in zoning law. Officials in Millstone, N.J. have issued a summons to Lorraine Zdeb, a professional pet-sitter who took in nearly 100 animals from neighbors, clients and strangers to save them from the flooding of Tropical Storm Floyd, charging her with operating a temporary animal shelter in a residential neighborhood. (“Somerset County woman charged for taking in animals during storm”, AP/CNN, Nov. 20, link now dead).
November 22 — Repetitive motion injury Hall of Fame. Delicacy prevents us from describing exactly how this Fort Lauderdale, Fla. woman acquired carpal tunnel syndrome in the course of providing paid telephone companionship for lonely gentlemen, but it did not prevent her from applying for workers’ compensation benefits for which she obtained a “minimal settlement” this month. (Reuters/ABC News, Nov. 19, link now dead).
November 20-21 — Annals of zero tolerance: the fateful thumb. MeShelle Locke’s problems at North Thurston High School near Tacoma, Washington began Nov. 5 when she pointed her finger and thumb at a classmate in the shape of a gun and said “bang”. Asked if that was a threat, she saucily quoted a line from the 1992 movie “The Buttercream Gang”: “No, it’s a promise.” Before long, she was hauled up on charges of having threatened violence, drawing a four-day suspension and a disciplinary record that may affect her chances of getting into a competitive college.
A budding writer whose work appeared in the high-selling anthology Chicken Soup for the Kid’s Soul, and who says she’d never been in trouble with the school before, MeShelle might seem an unlikely source of menace, but school officials told her father that his daughter “fit the profile” of a potentially dangerous student: “For example, she often eats lunch alone or in a small group.” (Karen Hucks, “Gunlike gesture results in suspension”, Tacoma News-Tribune, Nov. 13; “School is no place for ‘bang-bang’ jokes”, Nov. 16, links now dead)
November 20-21 — From the evergreen file: L.A. probate horror. Wealthy art collector Fred Weisman was lucky he didn’t live to see the proceedings in a Santa Monica courthouse after his death “as his will and his estate are picked apart like a slab of pork thrown to buzzards.” (Jill Stewart, “Shredded Fred”, New Times L.A., Nov. 19, 1998, link now dead).
November 20-21 — No, honey, nothing special happened today. In early 1997 Denise Rossi startled her husband by announcing that she wanted a divorce. In the ensuing legal proceedings she forgot to mention — it just slipped her mind! — that eleven days before filing she’d happened to win the California lottery for $1.3 million. Two years later, her husband learned the truth when a misdirected Dear-Lottery-Winner letter arrived offering to turn his ex-wife’s winnings into ready cash. And this Monday a judge ruled that she’d have to hand it all over to her ex-husband, as a penalty for committing a fraud on him and on the court. She has since filed for bankruptcy proteciton. (Ann O’Neill, L.A. Times, reprinted in San Jose Mercury News, link now dead).
November 20-21 — Judge to lawyers in Miami gun suit: you’re trying to ban ’em, right? “If you were to get exactly what you wanted, they’d be taken off the market entirely,” Circuit Court Judge Amy Dean told lawyers representing Dade County in its recoupment lawsuit against major gunmakers, by way of clarifying their position. (Jane Sutton, “Miami Gun Suit Could Take Firearms Off Market”, Reuters (link now dead), Nov. 16). Last month attorney John Coale, a spokesman for the municipal suits, “dismissed claims that the lawsuits could ever shut down the entire handgun industry. ‘It can’t be done, and it’s not a motive, because as long as lawful citizens want to buy handguns, and as long as the market’s there, there’s going to be someone filling it,’ Coale said.” (Hans H. Chen, “Colt’s Handgun Plan Heats Up Debate”, APBNews.com, Oct. 11) (see Oct. 12 commentary).
Dade County-Miami Mayor Alex Penelas, quoted in the new Reuters report, seemed to view the anti-democratic nature of the county’s lawsuit almost as a point in its favor: he “said he was using the courts in an attempt to crack down on the gun industry because the Florida legislature refused to do so. ‘Every year that I’ve gone to the legislature we have basically been told to take our case elsewhere,’ he said.” Much the same sentiment was expressed last month by Elisa Barnes, the chief lawyer behind the Hamilton v. Accu-Tek lawsuit in Brooklyn, N.Y. against gunmakers: “‘You don’t need a legislative majority to file a lawsuit,’ says Ms. Barnes.”” (“Evolution of a Cause: Why the Gun Debate Has Finally Taken Off”, Wall Street Journal, Oct. 21 (requires online subscription))
November 20-21 — National Anxiety Center “Favorite Web Sites of the Week”. “I recommend a visit to www.overlawyered.com where you can get tons of data regarding how trial lawyers are destroying this nation out of nothing more than greed, greed, and greed. This excellent site will help you understand what’s happening to Microsoft, to the tobacco industry, the gun manufacturers, and much more.” — “Warning Signs”, the weekly commentary of Alan Caruba’s National Anxiety Center, for Nov. 19. Unabashedly conservative, Mr. Caruba’s popular site specializes in refuting environmental scares in outspoken style.
November 20-21 — 100,000 pages served on Overlawyered.com. We’d have hit this milestone earlier but our counter went on the fritz for a few days…thanks for your support!
November 18-19 — Worse than Y2K? “If the EPA succeeds in forcing a shutdown of the 17 coal-fired power generating plants it claims are illegally polluting,” editorializes the Indianapolis Star regarding the Clinton Administration’s recently filed lawsuit, “chances are very good the Midwest will experience major brownouts and rolling power outages on the next hot summer day.” Moreover, the “lawsuits were filed without warning [Nov. 3] by the Justice Department on behalf of the EPA. It was, quite simply, an unprecedented sneak attack on the electrical power industry” — yet one to which private environmental groups may have been tipped off in advance, given how ready they were to fire off a flurry of supportive press releases. EPA administrator Carol Browner and Janet Reno’s Justice Department now contend that utilities disguised expansions and upgrades of the grandfathered plants as routine maintenance, but a Chicago Tribune editorial says the modernizations were carried out with “the knowledge of federal environmental inspectors” whose superiors are now seeking to change the game’s rules after many innings have been played. If a looming Y2K glitch threatened to shut down a large share of the electric capacity of the Midwest and South, there’d be widespread alarm; when aggressive lawyering threatens to do so, few seem to care. (“EPA sneak attack”, editorial, Indianapolis Star, Nov. 5, link now dead; “A costly U-turn by the federal EPA”, editorial, Chicago Tribune, Nov. 13).
November 18-19 — Golf ball class action. Golf Digest is “disgusted” over a class-action suit that lawyers filed against the Acushnet Company because, after running out of a promotional glove sent free to customers of Pinnacle golf balls, it sent the remaining customers a free sleeve of golf balls instead. Fraud! Deception! Shock-horror! “In the end, the plaintiffs’ attorneys were awarded as much as $100,000 in fees for their heroic efforts, [Allen] Riebman and [Lawrence] Bober (as the two named plaintiffs) themselves received payments of $2,500 apiece, and everyone else received what the lawsuit claimed was unacceptable in the first place: another free sleeve of Pinnacles. That’s justice at work.” (“The Bunker”, Golf Digest, October 1 — link now dead)
November 18-19 — Skittish Colt. According to Colt Manufacturing, the historic American gunmaker battered by the trial lawyers’ onslaught, Newsweek got some things wrong in its report last month, which was summarized in this space Oct. 12 (see also Nov. 9 commentary). Colt denies that its dropping of various handgun lines constitutes an exit from the consumer market, and says “it will continue its most popular models, such as the single-action revolver called the Cowboy and the O Model .45-caliber automatics.” It gave a number for layoffs of 120-200 rather than 300, and suggested that the lines would have been dropped at some point even without the litigation pressure. (Robin Stansbury, “Arms Reduction at Colt’s”, Hartford Courant, Oct. 13, reprinted at Colt site). A statement by the company did not, however, dispute a quote attributed to an executive in the original reports: “It’s extremely painful when you have to withdraw from a business for irrational reasons.”
According to Paul M. Barrett in the Oct. 21 Wall Street Journal, Colt’s legal bills for defending the suits “are expected to reach a total of about $3 million in 1999 alone. Insurance will cover two-thirds of that, says [New Colt Holdings chairman Donald] Zilkha, but the remaining $1 million is a significant hit for a still-struggling company that expects to have net income of only about $2 million this year.” (“Evolution of a Cause: Why the Gun Debate Has Finally Taken Off”, Wall Street Journal, Oct. 21). Update: for a closer look at Colt, see Matt Bai, “Unmaking a Gunmaker”, Newsweek, April 17, 2000.
November 18-19 — Law-firm bill padding? Say it isn’t so! Law professor Lisa Lerman of Catholic University in D.C. thinks lots and lots of overbilling goes on, even at big-name firms. “There’s a complete disconnect between the occurrence of misconduct and the rate of discipline,” she says. (Michael D. Goldhaber, “Overbilling Is a Big-Firm Problem Too”, National Law Journal, Oct. 4). One of Lerman’s case histories, if accurate, indicates systematic malfeasance in the methods by which an unnamed Eastern law firm generated time sheets to submit to its insurance-company clients. (Michael D. Goldhaber, “Welcome to Moral Wasteland LLC”, National Law Journal, Oct. 11).
November 18-19 — A lovable liability risk. Zoe, a golden retriever who for the past two years has accompanied Principal Jill Spanheimer at her office at West Broad Elementary School, and has made friends with practically all the kids over that time, has been banished by an administrative order of the Columbus, Ohio public schools. The school system’s letter to Ms. Spanheimer “cited ‘possible allergic reactions,’ ‘liability issues’ and ‘an uncomfortableness of some students and staff’ as reasons Zoe was expelled.” See if your heart doesn’t melt at the picture (Julie R. Bailey, “Principal’s dog expelled from elementary school”, Columbus Dispatch, Nov. 11). On Tuesday the board agreed to review the policy (Bill Bush, “Policy on animals in schools becomes pet project for board”, Columbus Dispatch, Nov. 17).
November 18-19 — Aetna chairman disrespects Scruggs. No love lost, clearly, between Richard Huber, chairman of Aetna, and Mississippi tobacco-fee tycoon Richard Scruggs, prominent in the much-hyped legal assault on managed care. Scroll down about halfway through this interview to find the bracketed “Editor’s Note” where the interviewer asks the chairman of the nation’s largest health insurer whether it was “by intention or mistake” that he’d consistently misreferred to Mr. Scruggs’ surname as “Slugs”. Knock it off, kids (MCO Executives Online, Oct. 27 — full interview).
November 18-19 — Welcome WTIC News Talk visitors (“Ray and Robin’s picks“). We’ve even got a few Hartford-related items for you: see the Colt and Aetna bits above, and this report summarizing an article from the Courant about how lawsuits are making it hard for towns around Connecticut to run playgrounds.
November 17 — “How I Hit The Class Action Jackpot”. “As the lucky co-owner of a Toshiba laptop computer, I should be tickled pink: I apparently qualify for a cash rebate of $309.90….And the beauty of it is that my Toshiba works just fine!….[S]o remote is the possibility that our laptop will ever seriously malfunction that I may not get around to downloading the free software ‘patch’ that Toshiba has provided as part of the settlement.” Don’t miss this scathing Stuart Taylor column on the mounting scandal of the $147.5-million (legal fees) laptop settlement. (National Journal, Nov. 15 — link now dead).
November 17 — Who needs communication? The Equal Employment Opportunity Commission steps up its campaign of complaint-filing over employer rules requiring employees to use English on the job. Synchro-Start Products Inc. of suburban Chicago has agreed to pay $55,000 to settle one such agency complaint; native speakers of Polish and Spanish make up much of its 200-strong workforce, and the company said it adopted such a policy after the use of languages not understood by co-workers had led to miscommunication and morale problems. The EEOC, however, pursues what the National Law Journal terms a “presumed-guilty” approach toward employer rules of this sort, permitting narrowly drafted exceptions only when managers can muster “compelling business necessity”, as on health or safety grounds. Earlier this year, a California nursing home agreed to pay $52,500 in another such case. In some early cases, employers adopted English-only policies after fielding complaints from customers who felt they were being bantered about in their presence or that non-English-speaking customers were getting preferential service — a problem which, like that of co-worker morale, may not necessarily rise in Washington’s view to the level of “business necessity”. (“EEOC Settles ‘English Only’ Workplace Suit For $55,000”, DowJones.com newswire, Nov. 12; Darryl Van Duch, “English-Only Rules Land In Court”, National Law Journal, Oct. 26.)
November 17 — Microsoft roundup. A critic of the giant company explains, not without glee, why the findings of fact mean so much as a template for private lawsuits: “Before last Friday, telling a jury that Microsoft is an evil, predatory organization that drove you out of business was a long, protracted procedure of walking a jury, step by step, through a crash course of how a technology company works; the importance of core technologies and leveraging them into a larger space, the nature of operating systems and related licensing and agreements, how Microsoft was able to exploit its position in the marketplace; and why this means that the plaintiff’s company was hoodwinked and not simply outmaneuvered. Today, you just have to call the jury’s attention to the document which your, their, and Bill Gates’ tax dollars helped to prepare.” (Andy Ihnatko, “The Wicked Witch Is Seeking Positive Spin”, MacCentral Online, Nov. 9).
Also: why bungling by IBM (especially) and Apple helped clear the way for Redmond’s dominance (Jerry Pournelle, “Jerry’s take on the Microsoft decision: Wrong!”, Byte, Nov. 8). And a Gallup Poll shows the public viewing Bill Gates favorably by more than three to one, siding with Microsoft on the trial by a 12-point margin, and opposing breakup of the company by a solid majority — as if any of that will matter to the folks in Washington (Ted Bridis, “Despite court loss, Microsoft moving ahead in public opinion”, AP/SFGate Tech, Nov. 10).
November 16 — What a mess! New Overlawyered.com subpage on environmental law. Our latest topical page assembles commentaries and links on the slowest and most expensive method yet invented to clean up fouled industrial sites, pay due respect to irreplaceable natural wonders, and bring science to bear on distinguishing serious from trivial toxic risks — namely, turning everything over to lawyers at $325 an hour. Also included are commentaries on animal rights, including our ever-popular drunken-parrot, crushed-insect, rattlesnake-habitat and eagle-feather reports — though at some point the menagerie of legally protected critters will probably get its own page.
November 16 — Baleful blurbs. Under well-established First Amendment precedent, it’s still nearly impossible to prevail in lawsuits against book publishers alleging that their wares are false and misleading — that, e.g., the diet book didn’t really make the pounds melt away, the relationship book resulted in heartbreak rather than nuptials, the religion book led the reader into spiritual error, and the celebrity autobiography bore only a passing relationship to strict historical truth. Were it otherwise, whole categories of book might never appear on bookstore shelves in the first place for fear of liability, including not a few works of public policy interest, such as, for example, the writings of certain early enviro-alarmists who predicted famine and exhaustion of world nonrenewable resources by 1985.
However, a recent decision in a California court may represent a breakthrough for plaintiff’s lawyers who’ve long hoped to expand publisher liability for printed untruths. The “Beardstown Ladies” were a mid-1990s publishing phenomenon in the well-worn genre of commonsense investment advice: a group of grandmothers in a small Midwestern town whose investment club was widely reported to have achieved stellar annual returns. Eventually a reporter for Chicago magazine investigated and found the Ladies had inadvertently inflated their returns, which turned out to be not especially stellar. Disney, their publisher, sent correction slips to booksellers, and the Beardstown craze was soon but a memory. The San Francisco law firm of Bayer, August & Belote, however, went to court on behalf of a customer to say that Disney had behaved falsely and deceptively by not yanking the book or at least its cover, which repeated the discredited claims.
Last month, reversing a lower court’s ruling, the state’s First District Court of Appeal ruled that although First Amendment law concededly protected the contents of the book, its cover blurbs were entitled to no such protection — even though the blurbs were in fact quoted verbatim from the book’s text. “Because the state has a legitimate interest in regulating false commercial speech, we conclude that the statements, as alleged, are not entitled to First Amendment protection,” wrote Justice Herbert “Wes” Walker. The Association of American Publishers had filed an amicus brief warning that such a ruling would “impose an affirmative obligation on publishers to investigate independently and guarantee the accuracy of the contents of the books if those contents are repeated on book covers and promotional materials.” (Rinat Fried, “Panel: You Can Judge Book by Cover”, The Recorder/Cal Law, Oct. 29). (DISCUSS)
November 16 — ‘Bama bucks. Per financial disclosure reports, six plaintiff’s law firms “donated about $4 million last year to six candidates through the state Democratic Party and political action committees”, according to the pro-tort reform Alabama Citizens for a Sound Economy. Tops was the firm of Jere Beasley of Montgomery, which gave “more than $1 million — $633,000 to the Democratic Party and $389,000 to two political action committees, Pro-Pac and Trial-Pac”. Other distributors of largesse included Cunningham, Bounds, Yance, Crowder & Brown of Mobile ($955,000), Hare, Wynn, Newell & Newton of Birmingham ($636,000); Pittman, Hooks, Dutton & Hollis of Birmingham ($526,000); Morris, Haynes, Ingram & Hornsby of Alexander City ($476,000); and King, Warren & Ivey of Jasper ($250,000). The money went to four judicial candidates, of whom two won, and to losing candidates for attorney general and lieutenant goveror. (Stan Bailey, “Group: 6 law firms gave $4 million to Demos’ run”, Birmingham News, Nov. 10) (earlier coverage of Alabama tort politics: Aug. 26, Sept. 1).