|Articles by Overlawyered.com editor Walter Olson: |
“The Law on Trial“, Wall Street Journal, October 14, 1997 (review of Beyond all Reason by Daniel Farber and Suzanna Sherry).
“Shut Up, They Explained” (“zero-tolerance” harassment policies), Reason, June 1997.
“Judge Dread” (on Robert Bork, Slouching Toward Gomorrah), Reason, April 1997.
January 10-12 — Tobacco fees, cont’d: “Not a pretty picture”. What with our hiatus, we’ve been remiss in updating readers about it, but the neglected story of how lawyers carted off billions from the 1998 tobacco heist has been breaking into the news in increasingly noisy fashion. In November, former Texas Attorney General Dan Morales, who’d previously stonewalled efforts to investigate the private lawyers who worked under contract with his office, surprised observers by approaching his successor’s office with word that he has information about how at least one of those lawyers (unnamed thus far) may have breached his fiduciary duty to the state and may be subject to a potential forfeiture of fees. (Brenda Sapino Jeffreys, “Former Texas AG Offers Info on Tobacco Lawyers’ Conduct”, Texas Lawyer, Nov. 18). The Dallas Morning News calls for the private lawyers to stop dodging the state’s efforts to put them under oath about the fee affair, as they have been doing for years now (“Clearing the air: Abbott should examine new tobacco claims” (editorial), Dallas Morning News, Nov. 15)(reg).
Last month, American Lawyer published what seems to be the first major journalistic account of one of the most secretive aspects of the whole scandal: the unaccountable arbitration panel that has repeatedly awarded unheard-of sums to the trial lawyers. We’ve covered the doings of this panel many times on this site, and our editor discusses its rulings at some length in his new book The Rule of Lawyers, but we’re delighted to see a professional news organization finally devote its resources to scrutinizing the arbitration panel’s role in the fee scandal. Reporter Susan Beck digs up a large trove of material previously unknown to us in what the magazine terms “a behind-the-scenes account of the controversial awards. Warning: It’s not a pretty picture.”
“The proceedings were private, and only the awards were made public. According to transcripts and interviews with more than 20 participants, the hearings were loosely run events. A labor mediator, Wells had never conducted an arbitration. Testimony was not taken under oath. Celebrity witnesses — some paid, others with personal ties to the parties — offered testimonials in person and on professionally produced videotapes. The hearings were punctuated with folksy aphorisms and down-home appeals to [arbitrator John Calhoun] Wells, whose swing vote determined the outcome every time.” The whole article (and its sidebars) deserve close study. (Susan Beck, “Trophy Fees”, The American Lawyer, Dec. 2; “As Murky as a Clay Hole”, Dec. 2; “And the Winners Are…”, Dec. 2). And this month, the same reporter details the internecine strife that has gone far to tear apart the firm that made off with the greatest share of the ill-gotten gains from tobacco, Charleston, S.C.’s Ness Motley Loadholt Richardson & Poole, as the formerly cordial partners spar about … well, it basically seems to come down to money. “So maybe a couple billion dollars can’t buy happiness after all.” (Susan Beck, “Jet Blues”, The American Lawyer, Jan. 9). (DURABLE LINK)
January 10-12 — China: lawyer sues over 4-minute cinema delay. Emulating the American way of doing things, with a vengeance? “A disgruntled cinema-goer who went to watch the hit Chinese film Hero is suing the picture house and a movie production company because the movie started four minutes late. Zhang Yang, a lawyer, took action after being forced to watch four minutes of advertisements, which delayed the start of the film until 9.34pm when his ticket said it was due to commence at 9.30pm, according to the weekly Beijing Today.” However, Zhang does not appear to have adopted American lawyers’ ideas of suitable compensation: he appears to be asking for a mere $17, “a refund of his 40 yuan ($8.50) ticket and 40 yuan ($8.50) in compensation.” (“Chinese man sues after adverts delay movie by four minutes”, Sydney Morning Herald, Jan. 6)(& see Feb. 20). (DURABLE LINK)
January 9 — “Drunk Driving Victim Sues Designated Driver”. New frontiers of liability dept.: in Boulder, Colo., a lawyer for car-crash victim Doris Gray is suing not just the drunken driver whose vehicle hit her car but also “the driver’s friend, who reportedly failed to keep her promise to be a designated driver”. Although none of the participants could think of any earlier cases in which persons have been held liable for shirking a designated-driver role, a former head of the Colorado Trial Lawyers Association claims the new theory is “pretty solid”. (TheDenverChannel.com, Jan. 7). (DURABLE LINK)
January 9 — Playing chicken on malpractice reform. New Jersey’s Democratic pols propose dealing with their state’s medical liability crisis by enacting a cap on insurance rates while doing nothing to reduce the spiraling cost of judgments, settlements and defense costs. Columnist Paul Mulshine of the Newark Star-Ledger isn’t impressed. (“MDs will fly the coop rather than play chicken”, Jan. 7). (DURABLE LINK)
January 9 — “The Lawyers Are Lurking Over S.U.V.’s”. “The beginning of a new year is a good time for predictions, so here’s mine: S.U.V.’s are next on the agenda for the plaintiff’s bar. … [Suits of this kind] have less to do with the law or the facts than with the social climate… Don’t be surprised if some ambitious state attorneys general get into the act, too.” (Daniel Akst, New York Times, Jan. 5)(reg). (DURABLE LINK)
January 7-8 — Disabled-access suit could stop Super Bowl. “Super Bowl XXXVII may have to move from Qualcomm Stadium unless the city expands access for the disabled at the stadium. Attorney Amy Vandeveld filed an application for an injunction Friday in U.S. District Court in an attempt to get the city to comply with the terms of a 2001 a settlement aimed at expanding access for disabled people at the stadium.” (“Super Bowl XXXVII may be blocked in San Diego”, The Sports Network, Jan. 3). In the March 2001 settlement, San Diego officials agreed to spend more than $6.5 million in taxpayer funds to improve access to the stadium; attorney Vandeveld “received $1.3 million in attorney fees and other payments”. Linda Woodbury, the city’s disability services coordinator, estimated that the city’s overall “to-do” list of accessibility projects would cost at least $175 million. (Caitlin Rother, “Disabled activists threaten suit on Padres’ new ballpark”, SignOnSanDiego, Feb. 11, 2002). And ABC correspondent John Stossel recently devoted a segment to lawyers’ use of the ADA to extract settlements from retailers and other defendants (“Equal Access to the ‘Wild Side'”, 20/20, Nov. 9). (DURABLE LINK)
January 7-8 — Trial lawyer’s purchase of Alabama governor’s house said to be “arm’s-length”. “Wray Pearce, the Birmingham accountant who bought Gov. Don Siegelman’s Montgomery home for twice its appraised value, was acting as an intermediary for trial lawyer Lanny Vines, who subsequently bought the house from Pearce, according to court records filed last month in a lawsuit involving the two men. … The governor and his representatives have described the house sale as an arm’s-length transaction, with the governor and his wife placing the property on the market, and a buyer coming along and paying the asking price. … None of the records in the court file specifically state why Vines used his longtime accountant as an apparent straw buyer for the home. Nor do they explain why Vines was willing to pay a sum that a county appraisal and a Register review showed was about twice the home’s value.” Vines is considered one of the most politically influential plaintiff’s lawyers in Alabama. (Eddie Curran, “Papers show trial lawyer paid accountant for Siegelman house”, Mobile Register, Nov. 11). Also catch the editor’s note at the end of the article: “The governor’s office has a stated policy of refusing to comment to Register Reporter Eddie Curran.” (DURABLE LINK)
January 7-8 — “The Politics of Family Destruction”. Scorching indictment of the divorce industry by Howard University professor and fathers’ rights advocate Stephen Baskerville (Crisis, Nov.). And civil liberties advocates are uneasy about a developing trend in which courts in Ohio and Wisconsin have ordered men behind in their child support payments not to father any more children. (Dee McAree, “Deadbeat Dads Told to Stop Having Kids”, National Law Journal, Sept. 26; see Nov. 28, 2001). (DURABLE LINK)
January 3-6 — “Courting stupidity: why smart lawyers pick dumb jurors”. If you’d like an advance peek at our editor’s forthcoming bookThe Rule of Lawyers, this is your chance: the chapter on jury excesses is excerpted in January’s Reason. (DURABLE LINK)
January 3-6 — “Doctors strike over malpractice costs”. “More than two dozen orthopedic, general and heart surgeons in West Virginia’s Northern Panhandle began 30-day leaves of absence Wednesday or planned to begin leaves in the next few days.” Doctors in Pennsylvania are also on the brink of a job action to protest the legal system, despite a letter from a state official menacing them with having their licenses revoked for patient “abandonment”. (MSNBC, Jan. 2; Josh Goldstein, “Pa. warns doctors not to quit”, Philadelphia Inquirer, Dec. 28; Google news; see Jan. 21, 2002) (DURABLE LINK)
January 3-6 — U.K.: “Killer claims over loss of interest”. “A murderer is demanding thousands of dollars in lost interest because his prison savings were not invested wisely.” John Duggan, 53, jailed for life in 1984 after he admitted battering his girlfriend to death, says officials of the British Prison Service wrongfully left his money “in a zero-interest prison account designed for spending in jail on phonecards and toiletries” and says they had a duty to invest his earnings in an interest-bearing account. (Melbourne Herald Sun, Dec. 29). (DURABLE LINK)
January 3-6 — “Jack Ass blasts ‘Jackass'”. “A Montana man who legally changed his name to Jack Ass in 1997 (to raise awareness of the perils of drunk driving) says Jackass, the controversial MTV stunt-fest and subsequent film, has besmirched his sterling reputation, and … has filed a $10 million lawsuit against Viacom.” (Julie Keller, E! Online, Jan. 2; Michael Rosenwald, “The Appellative Court: The Real Jack Ass”, The New Yorker, Jan. 6). (& letter to the editor). (DURABLE LINK)
January 3-6 — Milberg copyrights its complaints. The leading class-action law firm has sent cease-and-desist letters to about ten other law firms, informing them that they are in violation of its rights when they swipe large amounts of language from Milberg Weiss suits — sometimes pretty much the entire complaint — for purposes of filing their own copycat lawsuits against the same defendants. Annoyed by the free riders, star litigator Bill Lerach “started putting copyright notices on some of his complaints, and registering those notices with the U.S. Copyright Office last September.” (Janet L. Conley, “Milberg Weiss Tries to Nail Class Action Imitators”, Fulton County Daily Report, Nov. 20). (DURABLE LINK)
January 20 — U.K.: coercive campaign to constrain Cadbury… In Britain, a “leading public health expert” is proposing a legal ban on extra-large chocolate bars and a code of conduct for snack food companies which “would include promises to cut the size of their portions by 20 per cent and to stop selling ‘over-sized’ sweets”. Particularly offensive to coercive nutritionists is some food companies’ practice of offering an extra-large package at a price only slightly higher than that of the smaller size. (Severin Carrell, “Why that big, fat KitKat could be the death of you”, The Independent, Jan. 19) (& welcome TongueTied readers). (DURABLE LINK)
January 20 — … and climbing cost of “compensation culture”. “The compensation culture, in which ‘every mishap leads to a complaint’ and often to legal action, is changing the face of Britain and costing about £10 billion a year, a report says today. … Compensation paid by insurance companies and public authorities amounts to one per cent of GDP, actuaries estimate. The figure is growing by 15 per cent a year. … However, the 35 per cent spent on administration in Britain compares well with the 58 per cent in America.” Schools, police forces and the ministry of defense are all being sued more frequently. (Joshua Rozenberg, “Price of ‘suing for every mishap’ is £10bn”, Daily Telegraph, Dec. 17; “Compensation claims ‘costing UK £10bn a year'”, Ananova/Guardian, Dec. 17; Robert Verkaik, “Lawyers earn £3bn yearly from injuries culture”, Independent, Dec. 17; London Institute of Actuaries/Edinburgh Faculty of Actuaries, press release; “The Cost of Compensation Culture”, Dec. 2002 (PDF)). (DURABLE LINK)
January 17-19 — Vt. high court: ALL-CAPS DISCLAIMER on front page of employee handbook not unambiguous enough. “Sidestepping an all-capitals disclaimer on page one of an employee handbook, Vermont’s Supreme Court has revived a woman’s right to sue her ex-employer for breaching an implied contract when it fired her.” Although the disclaimer said: “THE POLICIES AND PROCEDURES CONTAINED IN THIS MANUAL CONSTITUTE GUIDELINES ONLY. THEY DO NOT CONSTITUTE PART OF AN EMPLOYMENT CONTRACT, NOR ARE THEY INTENDED TO MAKE ANY COMMITMENT TO ANY EMPLOYEE,” the court ruled that the woman could nonetheless ask a jury to construe the manual’s contents as generating a legally enforceable promise. (Andrew Harris, “Big Disclaimer No Bar to Employee Suit”, National Law Journal, Jan. 15). (DURABLE LINK)
January 17-19 — “Ich Bin Ein Tort Lawyer”. Train disasters in the Austrian Alps and in Germany in recent years, which killed 155 and 101 people respectively, have resulted in the filing of massive personal-injury lawsuits in New York City, although very few Americans numbered among the victims and most of the defendants being sued are European companies. American lawyers (including Edward Fagan, who also drew critical attention in the Holocaust-assets litigation — see Jun. 24, 2002) argue that so long as they designate at least one American as lead plaintiff, they should be able to bring any number of other nonresident plaintiffs in on the same action. Such forum-shopping enables the lawyers to sidestep rules in German and Austrian courts that ban contingency fees, cap damages, require the losing side to compensate the winners, and restrict discovery and the use of class actions. (Michael Freedman, Forbes, Jan. 6). (DURABLE LINK)
January 17-19 — Blog-appreciated. Yesterday (Jan. 16) we got Slashdotted, with a reader’s suggestion that we cover a lawyer’s cease-and-desist letter sent to the maintainer of a “free PCI device table” (we readily admit we don’t know what those devices are). AngryRobot describes an indecorous canine-generated outdoor hazard which seems only too likely to eventuate in the sort of personal injury case “destined to be on Overlawyered” (Jan. 16). Our return from hiatus last month was generously hailed by Susanna Cornett in Cut on the Bias (Dec. 13), and by the web’s premier chronicler of appellate law, Howard Bashman’s How Appealing (Dec. 15 and Dec. 30). Dean Esmay (Dean’s World, Jan. 10) calls us “one of the best sites on the web”. We’ve also been mentioned lately on Employers’ Lawyer (Jan. 12), MedRants (Jan. 11), Larry Sullivan’s Delaware Law Office (Nov. 12)(on loser-pays, which Sullivan dubs “winner wins”), Nikita Demosthenes (Oct. 19), and on many link lists including those of Rick Henderson, Nikki, Esq., Carey Gage, Professor Bunyip, John Ray, and Skunk by the Ocean. All this incoming link activity leaves us at #155 in the BlogStreet Top 200 blogs (ranked by number of those who link to us). A special tip of the hat to Scott Norvell’s recently launched TongueTied site, cataloguing excesses of political correctness, which generates an impressive amount of traffic for us. And we turn up in a sidebar in Germany’s Der Spiegel Online (Frank Patalong, “Wahre Lügen”, on the “Stella Awards” list of spurious cases, Nov. 29). (DURABLE LINK)
January 15-16 — Furor over California complaint mills. Beverly Hills, Calif. law firm Trevor Law Group has used the state’s bounty-hunting consumer-protection laws to file complaints en masse against auto repair shops, nail salons, and hotels, from which it then demands settlements. Even Calif. attorney general Bill Lockyer, no foe of the plaintiff’s bar, says he is “disgusted and appalled” by Trevor’s most recent mass litigation campaign, against more than 1,000 restaurants and food stores, many small and immigrant-owned. Business owners are organizing in response and many news outlets have run indignant editorials (Cindy Chang, “Backlash against lawsuit gains steam”, Pasadena Star-News, Jan. 2; Traci Jai Isaacs, “Business owners claiming old law used in ‘shakedowns'”, South Bay Daily Breeze, Jan. 14; California Restaurant Association “Call to Action”, Jan.; KABC-TV 7, “Auto Lawsuits”, Dec. 3; Civil Justice Association of California, “Legal Shakedowns Hitting Thousands of California Businesses”, Dec. 6; “Mass Produced Claims Against Nail Salons”, Dec. 6 (PDF)). Radio’s “John and Ken Show” has also been covering the controversy and its online audio segments (three December dates) are described by one reader as quite lively in tone, although we haven’t had the chance to listen to them. (& see Mar. 3) (DURABLE LINK)
January 15-16 — Sis-Boom-Sue. Jenny Lawson is suing the Des Moines school district, alleging she broke her leg when she collided with another cheerleader while cheering for the wrestling team at Roosevelt High School. “The suit claims the district was negligent for — among other things — failing to have cheerleaders perform on an absorbent mat and encouraging more than one cheerleader to jump at once. Drew Bracken, an attorney for the Des Moines district, said he knew of no schools with such rules. ‘I’m not aware of a requirement that cheerleaders perform on an absorbent mat. I’ve never heard of it before,’ Bracken said.” (Mark Siebert, Des Moines Register, Jan. 2). (DURABLE LINK)
January 13-14 — “Wacky Warning Label” winners. This year’s winner in Michigan Lawsuit Abuse Watch’s Wacky Warning Label contest is a label on a robotic massage chair that warns, “Do not use massage chair without clothing” along with “Never force any body part into the backrest area while the rollers are moving”. “Second place goes to a snowblower label that says ‘Do not use snowthrower on roof.’ Third is a kitchen label that says, ‘Do not allow children to play in the dishwasher.'” (multiple outlets; Business Wire, Jan. 8) (earlier winners: Jan. 25-27, 2002; Jan. 19-21, 2001; Jan. 18, 2000) (DURABLE LINK)
January 13-14 — Cochran: City Hall to blame for arson/murder by drug dealer. “In a legal memo expected to land at City Hall in a matter of days, attorney Johnnie L. Cochran Jr. will claim the city bears responsibility for the October arson murder of an East Baltimore family — in part because the anti-drug ‘Baltimore Believe’ campaign encouraged residents to speak out against dealers, a lawyer working with Cochran said yesterday. Cochran is representing relatives of the Dawson family, who prosecutors say were killed in retaliation for reporting neighborhood dealers to police.” (Laura Vozzella and Del Quentin Wilber, “Anti-drug campaign blamed in Dawson arson deaths”, Baltimore Sun, Jan. 8)(via WSJ Best of the Web) (DURABLE LINK)
January 13-14 — Anti-diet activist hopes to sue Weight Watchers. “U.K.-based psychotherapist Susie Orbach, author of Fat Is A Feminist Issue, is planning a lawsuit against Weight Watchers on behalf of what she says are thousands of women and men who have paid out many hundreds of British pounds to the company, only to end up fatter than before they started the program. … Orbach’s suit would be the first to hold a weight-loss company responsible for clients’ gaining the weight back.” (“Diet Dispute”, ABC News, Jan. 9). “‘Now that the general public is taking absolutely no responsibility, we retailers are starting to get anxious,’ says Simon Doonan, creative director of the Manhattan clothier Barney’s. ‘If people are suing McDonald’s for making them fat, one does wonder how far we are from an era where individuals will attempt to sue us when they buy clothes that make them look fat.'” (Joanne Kaufman, “Seasonal Pain and Suffering”, Wall Street Journal, Nov. 29) (DURABLE LINK)
January 31-February 2 — “Cities Pay Big in Faulty Lawsuits”. Fox News picks up on the theme explored by columnist Deroy Murdock a few days ago of how persons hurt while committing crimes or trying to commit suicide now often show up in court demanding compensation for others’ negligence in letting them be injured. This site’s editor went on camera to take a less-than-enthusiastic view of such suits. (Jan. 30) (DURABLE LINK)
January 31-February 2 — FBI probes Philadelphia’s hiring of class-action firm. “An FBI investigation is focusing on why current and former city officials gave potentially lucrative legal work to a top Democratic donor and resisted a judge’s efforts to seek competitive bids for the work.” The administration of Ed Rendell, since elected Pennsylvania governor, hired prominent class-action firm Barrack, Rodos & Bacine to represent the city as lead plaintiff in a large class action in California representing investors in Network Associates, a software firm. Through its senior partner, the law firm says it plans to cooperate with the investigation. (Cynthia Burton, Mark Fazlollah and Joseph Tanfani, “FBI investigates Philadelphia’s Pension Board”, Philadelphia Inquirer, Jan. 30). Update and more coverage: Mar. 21-23. (DURABLE LINK)
January 31-February 2 — “Valentine’s Card Burglar Sues Police”. From the U.K.: “A convicted burglar has been given legal aid to sue the police for sending him a Valentine’s card last year. Gary Williams, who has a 12-year criminal record, was one of 10 known burglars and car criminals who received cards from Brighton police. But when he opened the card, his girlfriend thought it must be from another woman. She was so cross that, before he could explain, she hurled an ashtray at him, and it went whistling past his head.” (David Sapsted, Daily Telegraph, Jan. 29) (DURABLE LINK)
January 31-February 2 — Fair housing law vs. free speech. On more than one occasion, when local residents have spoken out against the siting of low-income housing projects or group homes in their neighborhoods, they’ve faced (unsuccessful) lawsuits and attempted fines on the grounds that their speech constituted a civil rights violation. Now the Sixth Circuit has approved a more subtle way of discouraging residents from speaking their minds: impute their prejudiced views to the government that has allowed them to speak at a public hearing. It’s a good way of getting government bodies to stop holding public hearings for fear of liability, according to columnist Robyn Blumner (“Fair Housing Act cannot be used to gag residents’ displeasure”, St. Petersburg Times, Jan. 19). (DURABLE LINK)
January 31-February 2 — Manhattan Institute turns 25. The New York-based policy institute, with which our editor is associated, celebrates its quarter-century anniversary. Read more about it (Tom Wolfe, “Revolutionaries”, New York Post, Jan. 30; “Ideas Matter” (editorial), Jan. 30). Then visit the Institute’s website and sign up for its invaluable mailing list. (DURABLE LINK)
January 30 — “ADA Goes to the Movies”. The AMC chain pioneered stadium-style seating in movie theaters, which much improves sight lines for audiences and quickly became the industry standard. Then civil-rights activists swooped down, saying the new layouts (the earlier versions, at least) were unlawful because they provided too narrow a set of seating choices for patrons in wheelchairs. Jonathan Last of the Weekly Standard takes up the story (Jan. 24). (DURABLE LINK)
January 30 — Targeting Wall Street. More than 200 mass tort lawyers recently met at Las Vegas’s Bellagio Hotel to discuss suing investment firms, at an event put on by the Mass Torts Made Perfect organization. Veterans of the breast-implant and fen-phen campaigns “are hoping to profit from the fallout of the $1.4 billion global regulatory settlement over stock-research conflicts, seeking to file claims on behalf of investors.” Law partners James Hooper and Robert Weiss “concede they don’t really know their way around Wall Street” but have already spent more than $1 million in television advertising in search of retired Florida clients who lost money in the market. “The pair is teaming up with Levin Papantonio Thomas Mitchell Echsner & Proctor PA, a large mass-tort firm based in Pensacola, Fla., known for its filings against the tobacco industry, among others.” Messrs. Hooper and Weiss “recently filed 71 cases against Citigroup Inc.’s Salomon Smith Barney on behalf of investors who lost less than $25,000 apiece.” The newcomers have not met with a friendly reception from the existing plaintiff’s securities bar, however, who tend to sniff at their lack of a track record in the area. (Susanne Craig, “Lawyers Target Wall Street Following Regulatory Payoff”, Wall Street Journal, Jan. 29) (online subscribers only). (DURABLE LINK)
January 29 — State of the Union. “To improve our health care system, we must address one of the prime causes of higher costs — the constant threat that physicians and hospitals will be unfairly sued. Because of excessive litigation, everybody pays more for health care and many parts of America are losing fine doctors. No one has ever been healed by a frivolous lawsuit. I urge the Congress to pass medical liability reform.” (President Bush, State of the Union speech Jan. 28, reprinted, Quad City Times). Charles Krauthammer’s take: “Sick, Tired and Not Taking It Anymore”, Time, Jan. 13 (MedRants comments). And see James M. Taylor, “States Take Lead on Medical Malpractice Reform”, Heartland Institute Health Care News, Jan.(DURABLE LINK)
January 27-28 — Latest Rule of Lawyers publicity. Following appearances in New York and Washington, our editor is speaking on the book to a lunchtime audience Tuesday in Chicago; details here. Trips to Texas, California and elsewhere are in the works, as well as many radio programs. Famed InstaPundit Glenn Reynolds gave us a nice lift Friday in his MSNBC column (Jan. 24). Fox News Channel has now put online a partial transcript of our editor’s appearance last Thursday on “The Big Story” (posted Jan. 24). A CNN appearance is still pending. Eric Schippers of the Center for Individual Freedom gave the book a favorable review in the Federalist Society publication Engage, reprinted here. And Reason’s recent cover story/excerpt included a mini-author profile which we neglected to link earlier. (Jan.)
There’s more: Barnes & Noble Online gave the book one of its rotating “We Recommend” designations (Law category); both the Conservative Book Club/National Review Book Service and Laissez-Faire Books have picked the book as a selection and given it good write-ups; and e-versions are available for download from Franklin.com (requires proprietary software) and Palm Digital Media. (DURABLE LINK)
January 27-28 — “No suits by lawbreakers, please”. Syndicated columnist Deroy Murdock says a good place to start with tort reform would be to cut off lawsuits where the complainant’s own crime or suicide attempt was the preponderant cause of his injury. Among eyebrow-raising cases: “Disturbed, Angelo Delgrande shot and wounded his parents and himself in a June 1995 dispute. He then received surgery at a Westchester County, N.Y. hospital. That night, he yanked the tubes and monitoring devices from his body, then leapt off the second story of an adjacent parking garage in a suicide bid. He is now paraplegic. Delgrande sued the hospital for failing to treat his depression and keep him indoors. Last October, he won $9 million.” Also quotes our editor (Scripps Howard News Service/Sacramento Bee, Jan. 23) (& see Jan. 31) (DURABLE LINK)
January 27-28 — “Woman Attacked By Goose Sues County”. “A woman who says she was attacked by a 3-foot-tall goose is suing Palm Beach County, claiming the county should not have allowed the bird to roam in a public park.” Darlene Griffin, 30, says she was attacked on Feb. 5 in Okeeheelee Park. The county contends that it has no duty to protect parkgoers from “obvious” dangers. (Local6/WKMG, Jan. 24; CNN, Jan. 24). (DURABLE LINK)
January 27-28 — Don’t break out the shakes yet. Judge Sweet’s ruling last week in favor of McDonald’s has been widely hailed as a blow for common sense and individual responsibility, but the judge “generously gave the plaintiffs a chance to try their luck again” and “take a second bite from the burger”. Lawyers are likely to refile both the case at issue and new ones, after due study of Sweet’s opinion which may even provide a “jurisprudential roadmap” to liability. “Make no mistake: This case is not about fat kids. It’s about fat paydays. For lawyers.” (“Mickey D’s Hollow Victory” (editorial), New York Post, Jan. 23; see also “Lawyers Run Marathons, Not Sprints”, Center for Consumer Freedom, Jan. 23). More: some well-known plaintiff’s lawyers pooh-pooh the fat suits (James V. Grimaldi, “Legal Kibitzers See Little Merit in Lawsuit Over Fatty Food at McDonald’s”, Washington Post, Jan. 27). On the other hand, a Fortune cover story argues for taking them seriously (Roger Parloff, “Is Fat the Next Tobacco?”, Jan. 21). (DURABLE LINK)
January 24-26 — Malpractice-cost trends. Many mainstream journalists, accepting arguments pressed on them by defenders of the litigation business, have uncritically repeated the notion that the crisis in medical malpractice insurance owes more to insurers’ unwise Wall Street investments than to galloping litigation costs. But in fact, according to an expert on insurer portfolio management, “asset allocation and investment returns have had little, if any, correlation to the development of the current malpractice problem. The crisis is rather the result of a generally unconstrained increase in losses and, over several years, inadequate premium income to cover those losses.” (Raghu Ramachandran, “Did Investments Affect Medical Malpractice Premiums?”, Brown Brothers Harriman Insurance Asset Management Group, Jan. 21; see also post and comments at Megan McArdle’s site and earlier Jan. 1 post and comments). Doctors’ increasing willingness to walk off the job to protest the law’s expropriation — and politicians’ heavy-handed hints that they will face punishment if they do so — recall the producers’ strike in Ayn Rand’s Atlas Shrugged, according to Edward Hudgins of the Objectivist Center (“Doctors Shrug”, Washington Times, Jan. 12). Ramesh Ponnuru argues that the Bush administration has not come up with an adequate grounding in federalism for a Congressional override of state malpractice law, given that it is a state’s own citizens who are the main losers from irrational verdicts (“Federal Malpractice”, National Review Online, Jan. 24). See also President Bush’s speech in Scranton, Jan. 16; White House “Policy in Focus: Medical Liability“; Michael Arnold Glueck and Robert J. Cihak, “It’s Not Just ‘Sue the Docs’ Anymore”, MedJournal.com blog, Jan. 14; RangelMD, Jan. 18; MedRants, Jan. 20; MedPundit, Jan. 19; Sydney Smith (MedPundit), “Dangerous Lies”, TechCentralStation, Jan. 21. (DURABLE LINK)
January 24-26 — Race-bias cases gone wrong. “The Florida Supreme Court has disbarred a Fort Lauderdale attorney accused of filing a string of racial discrimination lawsuits against employers such as Ocean Spray and BellSouth, which a federal judge labeled as extortion. Norman Ganz was disbarred for allowing his paralegal, a convicted felon, to engage in the unlicensed practice of law, charge an excessive fee and represent clients with adverse interests. … They were accused of filing a string of lawsuits against employers such as Ocean Spray, BellSouth, Broward County, Fla., and the Broward County School Board, then threatening to bring in the NAACP as a plaintiff. In return, the lawyers gave NAACP chapters some of the settlement money. … The cases also led to the ouster of Roosevelt Walters, former head of the Fort Lauderdale NAACP.” (Julie Kay, “Florida Lawyer Who Filed Controversial Racial Bias Suits Disbarred”, Miami Daily Business Review, Dec. 6). (DURABLE LINK)
January 23 — Judge tosses McDonald’s obesity case. “A federal judge in Manhattan today threw out a lawsuit brought against the McDonald’s Corporation by two obese teenagers, declaring as he did so that people are responsible for what they eat and that the teenagers’ complaints could spawn thousands of ‘McLawsuits’ if they were upheld. … Samuel Hirsch, the Manhattan lawyer who represents the plaintiffs … noted that Judge Sweet said the two teenagers were not barred from filing an amended complaint, and Mr. Hirsch promised to do just that, asserting that he still had a ‘credible and viable lawsuit.'” New York Times (reg); opinion in PDF format; GoogNews compilation; Reuters/FoxNews; AP/Court TV; Yahoo Full Coverage). And — rather undercutting the much-bruited notion that the increase in portion sizes at restaurants constitutes some sort of sneaky maneuver by restauranteurs having nothing to do with consumer preferences — “In a new study, researchers looked at such foods as hamburgers, burritos, tacos, french fries, sodas, ice cream, pie, cookies and salty snacks and found that the portions got bigger between the 1970s and the 1990s, regardless of whether people ate in or out.” (Deanna Bellandi, “Study Finds Meal Portion Sizes Growing”, AP/Washington Post, Jan. 21). (DURABLE LINK)
January 23 — Justices nix vicarious personal housing-bias liability. More good news: vacating a Ninth Circuit ruling, the Supreme Court has unanimously decided that under the Fair Housing Act of 1968 the owner of a real estate agency cannot in most cases be made to pay personally for the discriminatory acts of an underling without some further direct showing of fault. The agency’s liability was not in question; the question was instead whether the owner’s personal assets should be at risk if the agency lacked money to pay a judgment. A sobering aspect of the case: the Bush Administration entered it against the agency owner, arguing that he should be held personally liable but on a different legal theory (that the agency was legally an alter ego of his). The high court did not resolve that possible theory of liability. (Linda Greenhouse, “Justices Limit Housing Bias Lawsuits”, New York Times, Jan. 22)(reg) (DURABLE LINK)
January 23 — Our editor on TV. On Tuesday, kicking off a media swing to promote The Rule of Lawyers, our editor was a guest of Court TV’s Catherine Crier, who said some extremely kind things about the book (which rose to #265 on Amazon, helped by the WSJ‘s great review the same day). Today (Thursday) afternoon, watch for him to be interviewed by Judge Andrew Napolitano on Fox News Channel’s The Big Story with John Gibson. And although bookings are always subject to last-minute change, don’t be surprised if he turns up Friday evening on CNN. (DURABLE LINK)
January 21-22 — Not my partner’s keeper. No joint and several liability for us, please: “In a sign of increased caution in the post-Enron world, two of New York’s most prominent law firms have elected to become limited liability partnerships. Sullivan & Cromwell and Paul, Weiss, Rifkind, Wharton & Garrison both acquired Limited Liability Partnership status effective Jan. 1, thus ending a combined 250 years of operation as general partnerships.” The effect is to insulate partners from having to pay for each others’ negligence or other wrong, even if greater vigilance by the firm as a whole might have reduced the likelihood of wrongdoing. (Anthony Lin, “Prominent Law Firms Move to Limit Liability”, New York Law Journal, Jan. 10). (DURABLE LINK)
January 21-22 — ATLA’s hidden influence. From the Capital Research Center, which keeps tabs on activist groups: “The movement for tort reform has been stalled by an unholy alliance of trial lawyers and consumer advocates eager to preserve the power to sue. But few Americans understand the ties linking Ralph Nader-inspired groups to the Association of Trial Lawyers of America.” Includes considerable information about ATLA’s generosity to various private groups which lobby against limits on medical malpractice litigation. Also quotes this site (Neil Hrab, “Association of Trial Lawyers of America: How It Works with Ralph Nader Against Tort Reform”, January (summary; “Foundation Watch” report in PDF format)). (DURABLE LINK)
January 21-22 — “Tort turns toxic”. Overview of how litigation is wreaking havoc in diverse sectors of the society, from medicine to terrorism insurance, includes particular attention to the problems it’s creating for affordable housing. Construction of condominiums and apartments in California and other Western states has become much more expensive to insure because of burgeoning litigation over allegedly defective construction, some of the allegations well grounded but others drummed up by eager solicitation of condo associations by lawyers. By the year 2000, insurers in California were paying out nearly $3 for every premium dollar collected from builders, and imposing big premium hikes. Multi-unit housing construction has now plunged, and major builders have shifted efforts from affordable condos to pricier freestanding homes, perceived as a lower litigation risk. (Steven Malanga, “Tort Turns Toxic,” City Journal, Autumn 2002). (DURABLE LINK)
January 21-22 — Welcome Wall Street Journal readers. Highly favorable review of our editor’s new book The Rule of Lawyers: “an entertaining, but disturbing, chronicle of class-action abuses … Mr. Olson’s engaging prose, for all its charm, is propelled by a sense of outrage at the abuses he describes: He slams his opponents onto the mat, lets them rise slightly in a daze and then slams them down again, round after round.” Also mentions this website (David A. Price, “In a Class By Themselves”, Wall Street Journal, Jan. 21 (online subscribers only)). (DURABLE LINK)
December 8-10 — Vicarious criminal liability? Suburban Detroit prosecutors are pressing charges of involuntary manslaughter against 49-year-old cook Terry Walker, who hails from the palindromically named town of Capac in Michigan’s rural Thumb. It seems Walker sold a chrome-plated 9mm semiautomatic gun to a friend without having the friend provide a purchase permit for it as required by law. The friend resold the weapon and it eventually wound up in the hands of Ljeka Juncaj of Sterling Heights, a stranger to Walker, who used it to kill a police officer in Warren while in custody following a drug arrest. “Macomb County Prosecutor Carl Marlinga said he hopes Walker will become the vessel for a lesson to gun owners by telling them that if they fail to properly sell a gun and it is used in a crime, that is as bad as committing the crime.” Outraged Capac townspeople think that idea is crazy, and are taking up a collection for Walker’s defense. (Kim North Shine, “Punishment of ex-owner debated”, Detroit Free Press, Dec. 7).
December 8-10 — Florida’s legal talent, before the Chad War. Wall Street Journal‘s Collin Levey pulls together highlights from the pre-November legal careers of prominent Florida attorneys assisting Democrats in their postelectoral legal efforts. Dexter Douglass, “David Boies’s right hand”, had been among those who represented the state in the tobacco lawsuit; Henry Handler, who “brought suit against the butterfly ballot”, also had filed a class-action lawsuit against the Florida Marlins “on behalf of season-ticket holders who claimed the team injured them by ‘losing too much'”; Gregory Barnhart, who represented the Democratic National Committee in recount litigation, is past president of the Florida Trial Lawyers Association; and Harry Jacobs, who “launched the lawsuit to throw out 10,000 absentee ballots in Seminole County”, had fought a “high-profile war against Florida rules preventing lawyers from advertising on television (a k a electronic ambulance chasing).” (“Gore’s Bombastic Barristers”, Opinion Journal, Dec. 7).
December 8-10 — Sylph esteem. Krissy Keefer has filed the first case under San Francisco’s new law banning discrimination on the basis of height and weight, saying the prestigious San Francisco Ballet School rejected her 8-year-old daughter Fredrika as an applicant because it considered the girl’s size and shape inappropriate for a ballerina. The school says its purpose is to train professional dancers, not to provide recreation, and says it accepted only 29 percent of the 1,400 student applications it received last year (Edward Epstein, “Girl Fights For a Chance To Dance”, San Francisco Chronicle, Dec. 7).
December 8-10 — “Armstrong World Files for Chapter 11 Amid Battle With Asbestos Lawsuits”. The building and construction materials concern “tried a number of approaches to manage its asbestos liability, including negotiating broad-based solutions and supporting efforts to find a legislative resolution. But the number of cases filed and the cost to settle cases have continued to increase.” Lenders pulled the plug after the bankruptcy of Owens Corning earlier this fall made clear that even large companies that operate with success in unrelated businesses can face financial ruin if they sold asbestos-containing products decades ago (see Nov. 27, Oct. 6; DowJones/ CFO, Dec. 6; AP/MSNBC, Dec. 6; company site and bankruptcy news site).
December 8-10 — Welcome WorldNetDaily readers. We linked to and briefly excerpted Jon Splatz’s “LawyerClysm” article on Nov. 22, and the full version appears here. (Ralph R. Reiland, “Lawyered to death”, WorldNetDaily, Dec. 9). We also got a mention from Doug Camilli in his Montreal Gazette column on Thursday (Dec. 7) and were featured on Yahoo “Cool Links” as one of Leya’s “Surfer’s Picks” (now rotated off).
December 7 — Promising areas for suits. Among the National Law Journal‘s annual roundup of hot new causes of action that lawyers are suing on: cases charging employers with breaking promises (which may be only “implied” promises) made in job interviews; injuries over foul balls and other hazards in sports stadiums, long barred by the (fast-shrinking) old doctrine of assumption of risk; suits against relatives for failing to prevent gun-related injuries; suits over workplace injury against consultants (HR, security) and other third parties who, unlike the direct employer, may not be able to invoke the litigation shield of workers’ comp laws; laser eye surgery complications; negligent failure to provide defibrillation equipment in public places; “[l]awsuits against owners, leasers and drivers of trucks over accidents caused by trucker fatigue”; suits against sports doctors; and claims against trade associations, such as the one that recently obtained an $11 million verdict against the National Spa and Pool Institute on an allegation that its voluntary standards for diving boards should have been more stringent (Margaret Cronin Fisk, “New Century, New Causes”, National Law Journal, Nov. 21).
December 7 — “Woman drops suit alleging she caught herpes from mannequin”. It now develops that Brenda Nelson (see Oct. 11) of Hammond, Ind. has consulted a second doctor and been told she does not have herpes after all, and she has accordingly dropped her suit against the American Red Cross alleging that she contracted the malady by pressing her lips to those of a first-aid mannequin, says her attorney, Jerry Jarrett. The executive director of the local Red Cross said he doubted the disease could have been transmitted in the claimed manner anyway: “‘Everyone here gets a separate mannequin. Nobody gets behind someone else in line. Staff and volunteers wash the mannequins down with warm, soapy water with a little bit of bleach in it after each class,” said the director, whose name is Wayne Wigglesworth. (AP/FindLaw, Dec. 5).
December 7 — No more “naughty”. Organizations that train and represent British nursery staff have put out the word that misbehaving tots are not to be called “naughty”, “bad boy”, “silly” or “stupid”, such terms amounting to stigma-laden “labeling”. Some nursery staff have also asked parents to avoid using the terms in correcting their own children. Others call it “political correctness gone mad”. (Martin Bentham, “‘Naughty’ is banned from the nursery”, Sunday Telegraph (London), Dec. 3).
December 7 — Trial lawyers vs. hog farms. Various lawyers active in tobacco and other mass litigation are filing nationally coordinated lawsuits against hog farms in seven states over their purported porcine pollution atrocities. An environmentalist group led by Robert Kennedy Jr., Water Keeper Alliance, will provide the media-friendly face for the effort. Fifteen law firms are kicking in $50,000 apiece to get the assault underway. (Philip Brasher, “Environmentalists Target Hog Farms”, AP/Los Angeles Times, Dec. 6). For more on hog farm litigation, see Sept. 12, 2000 and Oct. 4, 1999. And the New York Times reports today that the hog farm effort is expected to serve as the pilot case in a new alliance between environmental groups and leading trial lawyers, which will involve the filing of mass tort suits in an effort to wrest policymaking away from the Environmental Protection Agency and Congress, i.e., the units of government that have some occasion to consult the views of actual voters (Douglas Jehl, “Fearing a Bush Presidency, Groups Plan Pollution Suits”, New York Times (reg), Dec. 7). “In one court filing, the plaintiffs said that the cleanup [of North Carolina hog farms] would require restoration of 3.7 million acres of wetlands at a cost of no less than $40,000 an acre — or roughly $148 billion for these damages alone.” The major defendant in the case, Smithfield Foods, has a total market capitalization of almost exactly one-one-hundredth that sum, at $1.48 billion (Motley Fool profile, SFD). Update May 7, 2001: judge throws out first two suits; Apr. 15, 2002: RFK Jr. embarrasses himself in Iowa; Jul. 3-9, 2002: federal judge throws out suit and imposes sanctions on plaintiffs.
December 6 — You deserve a beak today. Okay, so Katherine Ortega of Newport News, Va. says she found a crispy chicken head in her order of McDonald’s fried chicken wings, and by now pictures of the handsomely breaded ornithological exhibit have been beamed round the world. But what are the damages? (Especially since Ortega didn’t eat the offending morsel, and people in other countries do eat chicken’s heads.) A local plaintiff’s injury lawyer, Stephen H. Pitler, told the Newport News paper: “It looks to me that there’s a legal wrong … people might be psychologically scarred for a very long time”. On the other hand, a liability defense lawyer said that it really wasn’t much of a case: “no more than a couple thousand dollars”, which by the standards of the U.S. legal system, you will understand, really counts as nothing at all. (Peter Dujardin, “Chicken-head incident has ruffled feathers”, Newport News (Va.) Daily Press, Nov. 30; David Koeppel, “You deserve a beak today”, FoxNews.com, Dec. 1). The Newport News paper added: “Some wondered how urbanized Americans have become so far removed from the process of killing what they eat that the mere sight of a natural piece of an animal – one that is consumed every day elsewhere in the world — could cause such emotional scarring.” Right on schedule, local TV station WVEC reports that the Ortegas have now hired an attorney; they’re refusing McDonald’s request to examine the object in question; and they “said their children now refuse to eat chicken and that their youngest child has had a nightmare about the fried chicken’s head.” (“Fried chicken’s head flies the coop”, WVEC-TV (Hampton Roads), Dec. 5; “Inspectors investigate fried chicken’s head”, Dec. 5).
December 6 — Bear market. New York Observer tells how Bear Stearns lost a nine-figure jury verdict to a wealthy investor who’d suffered major losses in his account, in a case that has other brokerages more than a little nervous (see June 9-11) (Landon Thomas Jr., “Meet the Great de Kwiatkowski, the Man Who Was Awarded $164 Million From Bear Stearns”, New York Observer, Nov. 13).
December 6 — Safer but less free. Three years ago Gail Atwater of Lago Vista, Tex. was arrested, handcuffed in front of her children and hauled off to jail for … non-seat-belt use. Now her case has reached the U.S. Supreme Court. (Amanda Onion, “Soccer Mom at Highest Court”, ABCNews.com, Dec. 1).
December 5 — California’s lucrative smog refunds. “Five law firms, including one that donated nearly a quarter-million dollars to the governor, will split $88.5 million in state taxpayer money for a lawsuit returning smog fees to residents who registered out-of-state vehicles in the 1990s.
“An arbitration panel in Sacramento made the award, among the largest attorneys’ fees ever paid by the state.
“‘I’m going to be exploring every option I have to freeze this payment,’ state Controller Kathleen Connell said Thursday. ‘No one can recall any settlement that even comes close. I’m deeply distressed.’…
“The money will come from $665 million allocated by Gov. Gray Davis and the Legislature for refunds to people who paid the $300 fee. …One of the law firms that will claim a share of the $88.5 million is Milberg, Weiss, Bershad, Specthrie & Lerach. Bill Lerach and his firm, with offices in New York and San Diego, have been among Davis’ major donors, giving him $221,000 during his 1998 election campaign, and $20,000 this year.” (“Five Firms to Split $88.5 Million for Smog Lawsuit”, AP/DowJones.com, Dec. 4; Google search on Lerach + smog fee). (Update June 22-24, 2001: judge strikes down fee; Aug. 21, 2004: second arbitration panel awards $23.7 million).
December 5 — Do as we say, cont’d: arbitration clauses. “Lawyers appear to be quick to sue almost anyone except other lawyers, a lawyers’ publication said.
“Lawyers Weekly USA reported Thursday that a growing number of lawyers are putting fine print in fee agreements shielding them from being sued by a client if they botch a case.
“The Boston-based national newspaper for small law firms said lawyers instead prefer that such disputes go to private arbitration because arbitration is faster and cheaper, decisions are often made by other lawyers rather than juries, and there’s no public record.” (UPI/Virtual New York, Nov. 30).
December 5 — Might fit in at Business Week. “[Cartoonist Ted] Rall does freelance work as well, which includes a monthly cartoon for Fortune magazine, called ‘Business as Usual.’ ‘Actually, it’s one of my favorite gigs because it’s really anti-corporate, anti-business… I basically trash capitalism in Fortune…. I have no business being in Fortune, you know, it’s ridiculous. I’m a Marxist, basically.”” (Morika Tsujimura, “Cartoonist Rall Comes Out of Left Field”, Columbia Daily Spectator (Columbia University), Dec. 4) (via Romenesko/Poynter Media News).
December 4 — Burying old hatchets. The decay of the principle of statutes of limitation underlies a host of troublesome legal actions in areas ranging from slavery and WWII reparations to recovered-memory child abuse charges to Indian land claims, argues our editor in his latest Reason column (Walter Olson, “Stale Claims”, November; Paul Shepard, “Lawyers Plan Slave Reparations Suit”, AP/Excite, Nov. 4). Not everyone who has suffered historical dispossession is in a position to profit from the law’s willingness to reopen old grievances: “Germany’s highest court ruled on Wednesday that east Germans stripped of property during 60 years of dictatorship under first Nazism and then communism were not entitled to further compensation.” (Reuters/FindLaw, “Court Rejects East German Land Compensation”, Nov. 22).
December 4 — Endangered list. “The Fish and Wildlife Service says it can’t add more wildlife to the endangered species list this year because it has to spend so much time and money defending lawsuits from environmentalists. … The service is swamped by lawsuits from environmental groups demanding ‘critical habitat’ designation for some of the 1,225 species in the U.S. already listed as threatened or endangered. A critical habitat ruling describes the area where a species either lives or could live.” (“Agency: Lawsuits Stymie Conservation”, AP/FindLaw, Nov. 21).
December 4 — Exotic dancers in court. In Scranton, Pa., a jury has “ordered a nightclub to pay $363,153 to a stripper who was badly burned while performing her fire-breathing routine. … [In 1994 Patricia] Ryan accidentally dribbled a mixture of 151-proof rum and salt onto her chest and suffered second-degree burns. She alleged that the [Cabaret Nightclub’s] employees did not provide adequate safety equipment or come to her aid quickly enough.” Ryan is now 36 and is enrolled at Harvard University, according to the story. (“Burned Stripper Wins $363,153 Award “, AP/Newsday, Nov. 16). And in Cleveland, a lawyer for Jodi Ketterman has objected to a judge’s plan to order an electronic monitoring bracelet attached to her ankle in lieu of bond in a pending criminal case, saying the bulky device would interfere with her work as an exotic dancer (Karl Turner, “Exotic dancer’s lawyer says bracelet too much to wear”, Cleveland Plain Dealer, Sept. 28). More exotic dancer litigation: Aug. 14, July 26, May 23, January 28.
December 1-3 — Hauling commentators to court. Both left and right these days seem increasingly inclined to drag pundits of the opposite camp into litigation. White House aide Sidney Blumenthal, pursuing his defamation suit against Matt Drudge, is demanding that numerous conservative commentators submit to interrogation under oath about the case; the list is said to include John Fund, Arianna Huffington, Ann Coulter, David Horowitz and Tucker Carlson (David Carr, “Blumenthal-Drudge Legal Grudge Match Drags in a Who’s Who of Right-Wing Commentators”, Inside.com, Nov. 29; Michael Ledeen, “An Open Letter to the Blumenthal 25”, National Review Online, Nov. 21). Meanwhile, the litigious conservative group Judicial Watch has announced that it is going to “monitor” hostile columnists Joe Conason and Gene Lyons “among others, to make sure they do not violate the rights of American citizens,” which might easily be mistaken for a not-very-veiled intent to seek grounds to sue them (Greg Lindsay, “Judicial Watch, Clinton Administration Scourge, Targets Salon Writers Conason and Lyons”, Inside.com, Nov. 21). And the World Wrestling Federation, under fire from the social-conservative Parents Television Council, has sued PTC alleging “a multi-faceted pattern of tortious and fraudulent activities” based on its efforts to get corporate advertisers to drop their support of WWF broadcasts (“Grudge Match”, Opinion Journal (Wall Street Journal), Nov. 26).
December 1-3 — Batch of letters. The latest additions to our letters page have to do with why the EEOC’s chairman asked to stop the tape during a John Stossel interview; the Florida election debacle; and the Derrick Thomas crash.
December 1-3 — Burned by a hired witness. Lawyers around the country hired Gary S. Stocco of the National Burn Victim Foundation to testify as a courtroom expert on burn injuries, for both prosecution and criminal defense as well as in civil cases. But his resume was “filled with embellishments and false qualifications”, and listed two degrees from an outfit that “requires no course work and mails out degrees for cash”. Now he faces up to 20 years in prison after being convicted in Prince William County, Va., south of Washington, of perjury and obtaining money under false pretenses. One DA called Stocco a hired gun, while another said he “sets out to tip the scales of justice toward whoever is paying him.” Sentencing is scheduled for January.
“According to transcripts of testimony in several jurisdictions, Stocco said he had investigated hundreds of child-abuse cases as a state police officer in New Jersey and had attended surgical procedures for burn victims. But Gary Gardiner, a Prince William detective, said yesterday that Stocco had instead patrolled parking lots and hadn’t been involved in any criminal investigations or surgeries.
“Each time Stocco was allowed by a judge to testify as an expert witness, it boosted his qualifications. It’s a cycle that worries prosecutors.” (Josh White, “Roving Burn ‘Expert’ Was False Witness”, Washington Post, Nov. 3. See also New Jersey legislative commission (scroll halfway down), June 17, 1998; Georgia Firefighters Burn Foundation bulletin board; USA Today).
December 20 — Property taxes triple after wrongful-termination suit. “The Delaware County [Oklahoma] Excise Board voted Monday to impose a tax levy that will triple property taxes for Kenwood’s 128 residents to pay off a court judgment against the school system.
“Board members voted to set the levy after Kenwood school board members agreed Thursday to use $75,000 in federal Impact Aid funds to pay Garland Lane, the former school superintendent, who won a $305,600 judgment against the district in 1998 for wrongful termination.
“The school district still owes Lane $179,000. The federal trial judge ordered that Lane and his Tulsa attorney would be allowed to collect an additional 10 percent interest on the outstanding debt until it was paid.
“A Kenwood taxpayer who normally pays $224 in taxes for the year will now have to pay $763, under the levy approved Monday.” (Jann Clark, “Property tax triples in Kenwood”, Tulsa World, Dec. 12).
December 20 — Obese fliers. A judge has ruled that Southwest Airlines did not unlawfully discriminate against Cynthia Luther, whose weight exceeds 300 pounds, when it required her to buy a second seat on a flight from Reno to Burbank (“Large Passenger Has Suit Dismissed”, Yahoo/AP, Dec. 14) (via Drudge). Days earlier, a confidential report from an official agency in Canada recommended that airlines be forbidden to charge highly obese passengers for a second seat, on the grounds that their condition should count as a disability entitled to accommodation. The opinion from the Canadian Transportation Agency promptly came under fire from both directions, with the Air Transport Association of Canada charging that such a rule would be unacceptably expensive, and Helena Spring, founder of the Canadian Association for Fat Acceptance, saying that obesity should be viewed as a healthy condition rather than a disability (Glen McGregor, “Treat the obese as disabled, airlines told”, Ottawa Citizen, Dec. 10). Update Oct. 25-27, 2002: complaint by obese Canadian passenger fails.
December 20 — New batch of letters. Our letters page catches up on more of its backlog with letters from readers on the Florida recount, Microsoft’s decision to settle its “permatemps” case, and a view from British gangland on how lawyers ought to be paid.
December 20 — Jury orders Exxon to pay Alabama $3.5 billion. No, Alabama hasn’t lived down the reputation for jackpot justice it earned in cases like BMW and Whirlpool: a jury yesterday deliberated just two hours before tagging the oil company with the mega-verdict in a dispute over natural gas royalties owed the state. Consultants for the state had argued that it was due $87 million, Exxon said the figure was much lower or zero, but private attorney Bobo Cunningham of Mobile — whom the state had hired on contingency, promising him 14 percent of any winnings — convinced the jurors that $3 billion would be a much more appropriate sum (Phillip Rawls, “Jury orders Exxon to pay $3.5 billion to state in offshore gas case”, AP/Birmingham News, Dec. 19). Updates Dec. 1, 2003: first verdict thrown out, retrial yields $11.8 billion punitive damage award; Apr. 18, 2004 judge cuts that verdict to $3.6 billion.
December 18-19 — “‘Belligerent’ Worker Is Covered by ADA, Says Federal Court”. “A worker who suffers from major depression that makes her belligerent and hypersensitive to criticism has a right under the Americans with Disabilities Act to a reasonable accommodation from her supervisors, a federal judge has ruled.” After she was fired from her job as a manager with the Unisys Corp., Tina Bennett sued arguing that she had been suffering from major depression which manifested itself in interpersonal difficulties. “U.S. District Judge Franklin S. Van Antwerpen found that when a worker’s depression affects her ability to think and concentrate, she has the right under the ADA to get more feedback and guidance if it would help her perform her job. … Bennett met the test [for impairment of ‘major life activities’], Van Antwerpen said, since the evidence showed she was ‘belligerent and displayed an unprofessional attitude,’ that she had ‘difficulty controlling her emotions’ and that she was ‘incredibly sensitive to criticism.’ Bennett’s supervisor testified that Bennett’s peers felt that they could not approach her and have a meaningful conversation with her, Van Antwerpen noted, and her poor interpersonal skills were listed as a reason she was fired.” Given her “evidence linking her behavior to symptoms of her mental disability,” the judge ruled, a jury must be allowed to consider her claim for damages under the ADA. (Shannon P. Duffy, Legal Intelligencer (Philadelphia), Dec. 13).
December 18-19 — Behind the subway ads. “[T]here isn’t a subway-riding adult in New York who hasn’t seen an ad for 1-800-DIVORCE, with the O formed by a diamond ring and a woman’s hand to the side making a tossing motion.” The law firm that picks up the phone when you call, Wilens & Baker, believes in the economies of scale obtainable from a volume business. It’s also unusual among advertisers in its emphasis on such lines as immigration and bankruptcy law: “There are a thousand lawyers advertising now, and 980 are personal injury lawyers,” says Michael Wilens. (Laura Mansnerus, “From a Captive Audience, Clients”, New York Times, Nov. 15) (reg).
December 18-19 — How to litigate an American quilt. For all their cozy and nonadversarial image, quilts these days “are hot items in copyright litigation” as designers head to court to accuse each other of swiping patterns. In one pending action, Paul Levenson, a New York attorney who makes a specialty in quilt law, is representing Long Island designer Judy Boisson in a suit against the Pottery Barn chain “over an allegedly infringing quilt that, like one of Ms. Boisson’s, contains eight-pointed pastel ‘Missouri Star’ blocks on a white background. One of the burdens that Mr. Levenson has to overcome is the fact that many quilt blocks and borders have been in the public domain for more than 100 years, and that the communal spirit that led pioneer women to make quilts is the polar opposite of the mindset of intellectual property law. … Home quilters are abuzz about Ms. Boisson’s copyright claims, but Mr. Levenson says her targets are commercial entities, not grandmothers making quilts for their own families.” (Victoria Slind-Flor, “Quilts: Traditional and ‘mine'”, National Law Journal, Nov. 13).
December 18-19 — Smoker’s suit nixed in Norway. “A Norwegian court ruled [last month] the tobacco industry could not be held responsible for a smoker’s terminal cancer in the country’s first tobacco compensation lawsuit. The Orkdal District Court said the smoker, Robert Lund, continued to smoke even after the dangers of smoking ‘became broadly known and accepted’ and said tobacco’s addictiveness did not free him from responsibility for continuing to smoke.” (Doug Mellgren, “Norway puts tobacco industry on trial”, AP/Nando Times, Nov. 10).
December 18-19 — Welcome Wall Street Journal readers. The Weekend Journal‘s “Taste” editorial commentary briefly mentioned our item on female Santa litigation (see Dec. 13-14). And today’s (Monday’s) Christian Science Monitor quotes our editor on the subject of workplace litigation over accent discrimination (Kelly Hearn, “What legal experts say”, Dec. 18, sidebar to main story, “Pegged by an accent“).
December 15-17 — Farm bias settlements: line forms on the left. The U.S. Department of Agriculture recently agreed to pay more than $2 billion to settle suits claiming it had discriminated against black farmers; a suit by Indian farmers is proceeding as well. And now lawyers have filed suit seeking $3 billion in damages on behalf of female and elderly farmers allegedly treated unfairly in USDA programs. “The farmers are represented by Washington, D.C., attorney Phillip Fraas, who helped win the lawsuit brought by black farmers.” (“Women, Elderly Farmers Sue USDA”, Omaha World Herald, Dec. 11).
December 15-17 — U.K.: skipping, “conkers” taboo in schoolyards. Skipping and other pastimes are being banned in British schoolyards as potentially hazardous or antisocial, as is the age-old game of “conkers”, played by throwing chestnuts at classmates. Teachers “are nervous about legal action from parents if the children are injured, according to a survey by Keele University. … [A] poll found last month that 57 per cent of parents would ask for compensation if their child was injured at school. … Sarah Thomson, the survey’s author, said that one headmaster said he would prefer to ‘ban all playtimes, as they are a nightmare'” The survey of Midlands schools “concluded that playgrounds were now often ‘barren, sterile and unimaginative’ because of over-cautious staff.” (Glen Owen, “Playtime conkers banned as dangerous”, The Times (London), Dec. 8).
In other zero tolerance news, the Washington, D.C. subway system made news last month after its police arrested 12-year-old Ansche Hedgepeth for eating french fries in one of its stations (“Girl Arrested for Eating Fries in Subway”, AP/APBNews, Nov. 16; Petula Dvorak, “Metro Snack Patrol Puts Girl in Cuffs”, Washington Post, Nov. 16). See also Adrienne Mand, “Schools’ Zero-Tolerance Programs Both Praised and Attacked”, FoxNews.com, Oct. 11; “Zero tolerance turns silly” (editorial), Detroit News, Oct. 7.
December 15-17 — O’Quinn a top Gore recount angel. Tied for second among biggest donors to the Gore recount campaign was Houston trial lawyer John O’Quinn, a frequent subject of commentaries in this space (Aug. 4, 1999, etc.). (“Jane Fonda, others pony up for Gore”, AP/MSNBC, Dec. 8). Aside from his role representing the state of Texas in the tobacco litigation (May 22, 2000), O’Quinn is probably best known for having reaped a huge fortune suing on the theory that silicone breast implants cause autoimmune and related illnesses, a theory that O’Quinn and his p.r. firm, Fenton Communications, still strive tenaciously to keep alive — a far more dogged refusal-to-concede than in the Gore case, which lasted mere weeks. See also Doug Bandow, “Ending silicone breast implant saga”, TownHall.com, Dec. 13.
December 13-14 — Supreme Court: forget that recount. Looks like it’s really, really over this time, but every time we allow ourselves to think so, a hand resembling David Boies’s pops out of the ground and starts pulling us down as in the last scene of Carrie. (Charles Babington, “High Court Overrules Gore Recount Plea”, washingtonpost.com, Dec. 12; Supreme Court opinions (PDF)). The courts are going to come out of this one looking more partisan, partial and willful, writes Stuart Taylor, Jr., who predicted the Supreme Court’s 5-4 split; but the real blame should be laid on the Florida Supreme Court for having “betrayed its trust and done grave damage to the rule of law”. (“The Dangers of Judicial Hubris”, Slate, Dec. 11). “It should now be obvious to most people that the Rule of Trial Lawyers isn’t a good substitute for the Rule of Law. … it’s worth noting that three of the four justices who voted for Al Gore’s ‘adventures in recounting’ on Friday had been personal-injury trial lawyers.” (John H. Fund, “Saved from rule of trial lawyers”, MS/NBC, Dec. 9). And Christopher Caldwell, in a column making too many interesting points to recount, asks the question: why did the candidates file most of the Florida lawsuits against their own side, with Gore suing Democratic-run counties and Bush suing those run by the GOP, the opposite of what you might expect if the point of election challenges is to expose and correct partisan irregularities? (“Bench Press”, New York Press, Dec. 12).
December 13-14 — Latest female Santa case. Donna Underwood of Mount Hope, W.V. has sued a company that had hired her to play Santa Claus for children at a mall in Beckley. “She said the company fired her after one of the mall’s managers complained about having a female Santa.” (“Woman Fights for Right to Be Mr. Claus”, FoxNews.com, Dec. 11). In October (see Oct. 12) the Kentucky Commission on Human Rights said it was okay for Wal-Mart not to employ a female Santa.
December 13-14 — “Economy-class syndrome” class action. A Melbourne, Australia law firm is filing a proposed class action on behalf of victims of “economy-class syndrome” against airlines and travel agents. The suit will claim that the complainants were not warned that sitting for prolonged periods in cramped conditions might lead to blood clots in the legs and elsewhere, and were not advised to get up from time to time to walk about the cabin. (Alison Crosweller, “‘Economy-class syndrome’ victims to sue”, The Australian, Dec. 11).
December 13-14 — Internet service disclaimers. Anxious to limit their liability, Internet service providers insert into their service agreements a lot of “defensive legalistic blather designed to keep the company out of court”, which taken literally would place many of their ordinary users in violation for doing things like maintaining multiple chats at once. They also reserve the right to change the rules: “‘They could suddenly demand you wear a bra and panties and dance in the street, and you are contractually bound to it, the way this is written,’ says Andrew Weill, a partner at Benjamin, Weill & Mazer, an intellectual property firm in San Francisco.” In practice users treat the language as a joke (but also are slower to sue). (John Dvorak, “Nihilists at Home”, Forbes, Oct. 2).
December 13-14 — Hamilton’s example. “Few men contributed as much to the ratification of the Constitution as Alexander Hamilton, who wrote the majority of The Federalist Papers. Hamilton worked as a lawyer. Unlike the landed gentry, he had to earn a living. The individual whose economic policies ensured the young Republic’s survival did not amass a huge personal fortune. In Alexander Hamilton, American, Richard Brookhiser explains: ‘His skill and success put him in great demand . . . and if he did not become rich from his practice, it was because of the interruptions of public life and because he charged low fees.’
“Low fees? Those words seldom appear in stories about, for instance, the tobacco lawsuits. Hamilton didn’t eat in a soup kitchen or live in a shelter, but he didn’t make enough to buy the era’s equivalent of a sports team, either. And if all lawyers followed his example, then audiences would not hoot and howl during a certain intense Shakespearean scene.” (“Law school” (editorial), Richmond Times-Dispatch, Nov. 28).
December 11-12 — What was the Florida court thinking? In Slate, University of Utah law professor Mike McConnell clears up why the actions of the Florida Supreme Court in the recount case are properly reviewable by the federal courts: “Article II, Section 1 [of the Constitution] provides that electors [of a state] shall be appointed ‘in such Manner as the Legislature thereof may direct.’ Any significant deviation from state statutory law is therefore a federal issue.” McConnell explains how the Florida high court has now (again) attempted to impose a method for the counting of votes (and thus for the resultant appointment of electors) markedly at odds with the manner laid down before the election by its legislature, making it proper for the U.S. Supreme Court to intervene a second time to vacate its action. And McConnell raises the interesting question: if the Florida high court really thought a statewide hand count advisable, why didn’t it order one earlier, when it had access to the same basic information and there was much more time to conduct one? (“What was the Florida court thinking?”, Dec. 9).
More: Michael Barone on how the Florida fiasco is likely to bring judicial activism into further disrepute (“Red Queen rules”, U.S. News & World Report, Dec. 18). George Will finds lawyer David Boies getting away with some pretty fast moves before the Sunshine State jurists (“Truth Optional”, Washington Post, Dec. 10). The Chicago Tribune says the Florida court’s “reckless leaps of illogic not only have threatened the integrity of the election, but also have risked tossing the nation into real turmoil.” (“A Supreme Blow for the Rule of Law” (editorial), Dec. 10)
December 11-12 — “Stock Options: A Gold Mine For Racial-Discrimination Suits?”. Lucrative tactic for lawyers representing disgruntled minority employees of firms like Microsoft, Gateway, Sun, Cisco and AOL: claim that had it not been for racism your client would have gotten stock options. Given the way these stocks have been behaving lately, they’d better hurry up with this theory while the options are still worth something (Jordan Pine and Linda Bean, DiversityInc.com, Dec. 5 (reg after first page teaser)).
December 11-12 — New Jersey OKs retroactive tort legislation. “Filling in for Gov. Christie Whitman, the New Jersey Senate president, Donald T. DiFrancesco, [last month] signed into law a measure that eliminates a two-year statute of limitations on wrongful death lawsuits involving victims of murder or manslaughter. The law is meant to give distraught families time to deal with the trauma of losing a loved one before turning to the task of seeking compensation from the people, businesses or institutions [emphasis added] they believe are responsible for the death. Yesterday’s measure applies retroactively, and therefore allows … past victims’ families to sue, [according to a spokeswoman for Sen. DiFrancesco]. “Frank Askin, founder of the constitutional litigation clinic at Rutgers University, said that he did not see a problem with the clause being retroactive, so long as the defendants in lawsuits had been convicted, thus establishing beyond reasonable doubt that a murder or manslaughter did occur, and that the evidence was clear and convincing.” Askin’s answer seems curiously beside the point given that the most frequent financial targets of such suits are sure to be not the actual individual killers, but the “businesses or institutions” that will be accused of such sins as “negligent security” (based on, say, allegedly inadequate lighting or patrolling of parking lots). These defendants normally will not have been charged with any criminal offense at all in connection with the incidents, let alone had such guilt established beyond reasonable doubt, yet now are apparently being opened to suit retroactively, despite the expiration of the statute. Sen. DiFrancesco is expected to run for governor of New Jersey in 2001. (“New Law Ends Time Limits On Wrongful Death Lawsuits”, New York Times, Nov. 18) (more on decay of statutes of limitation).
December 11-12 — Florida lawyers’ day jobs, cont’d. The election isn’t the only reason a lot of lawyers hang out in the Sunshine State these days: “If South Florida is the Wild Wild West of the class-action world, then the region’s posse of plaintiff lawyers are the cowboys. Some of the wealthiest, most prominent power brokers in the community, these litigators have turned South Florida into a hotbed for class-action lawsuits.” (Julie Kay, “Along for the Ride”, Miami Daily Business Review, Oct. 24) (quotes our editor). St. Petersburg Times columnist Bob Trigaux found in October that the state of Florida won the not-coveted award for the year’s worst suit (“The most frivolous lawsuit award goes to …”, Oct. 4) (also quotes our editor) (and see Dec. 8-10).
December 11-12 — Trustworthy professionals. Nurses, pharmacists and veterinarians score highest in a survey of which occupations are viewed as most honest and ethical; teachers, clergy, judges and police also do well. Attorneys are “consistently rated among the top five professions for prestige, but near the bottom for ethics and honesty.” (Daniel B. Wood, “Who people trust — by profession”, Christian Science Monitor, Nov. 28).
December 29, 2000-January 2, 2001 — Gambler rebuffed. Reversing a lower court, the Mississippi Supreme Court has ruled that Robert Shindler has no cause of action to sue the Grand Casino Tunica for extra winnings he said he was due “for a series of mini-baccarat games he played on August 22, 1997. Shindler claims that although he wanted to bet $20,000 per hand, casino personnel would only let him bet $5,000 at a time.” (Grand Casino Tunica v. Robert Shindler, Dec. 14).
December 29, 2000-January 2, 2001 — Makes others pay, doesn’t pay himself. Civil rights activist Al Sharpton says he is planning a class-action lawsuit against the Burger King Corporation as well as “acts of civil disobedience that will be organized at targeted Burger Kings across the country.” The vow came after federal court cleared the hamburger chain of charges that it discriminated against Detroit-based black franchisee La-Van Hawkins (May 11), who had hired high-profile litigator Willie Gary to press his case. “U.S. District Court Judge Marianne Battani in Ann Arbor, Mich., ruled that Hawkins and Burger King signed a ‘clear and unambiguous’ agreement in July 1999 barring Hawkins from suing the company for any problems that arose before then. Battani also wrote that Hawkins failed to state a claim for relief. ” (“Sharpton Plans Lawsuit Against Burger King”, FoxNews.com, Dec. 18).
However, the wherewithal for Sharpton’s hyperactive litigation posture is somewhat mysterious since he claims not to have the money on hand to pay the $65,000 a jury says he owes former prosecutor Steven Pagones for defaming him during the Tawana Brawley affair 13 years ago. During a seven-hour deposition in the ongoing Pagones case, it recently emerged that Sharpton, a leading New York power broker whose publicity machine gets him into the papers approximately daily, and whose daughters attend an expensive private school, “says he owns no suits, but has ‘access’ to a dozen or so. He says he owns no television set because the one he watches in his home was purchased by a company he runs. He says he has no checking accounts, no savings accounts, no credit cards, no debit cards … The only thing he admits to owning is a $300 wristwatch and a 20-year-old wedding ring.” (“Sharpton says he has no assets to pay slander victim”, AP/CNN, Dec. 7; Alan Feuer, “Asking How Sharpton Pays for Those Suits”, New York Times, Dec. 21; “It Depends on What You Mean by ‘Own'” (sidebar), Dec. 21). (Update June 22-24, 2001: he finally pays Pagones).
December 29, 2000-January 2, 2001 — Seats in all parts. “Tiered” stadium-style seating has been a boon to countless moviegoers who no longer fear having their view blocked by a tall person in the row in front of them. But wheelchair activists are targeting such arrangements as a violation of their right to sit in all parts of a theater, and the U.S. Justice Department is backing their complaints. “The ADA has proved a powerful tool on a similar issue — handicapped seating in sports stadiums. In 1996, a U.S. District Court judge in Washington forced builders of MCI Center to halt work in mid-construction to add spaces so that wheelchair users could see beyond standing spectators and to adequately disperse wheelchair spaces throughout the arena.” (Matthew Mosk, Ian Shapira, “Buying a Ticket to Court”, Washington Post, Dec. 8; Mark Pratt, “Theaters Sued Over Disabled Seating”, AP/FindLaw, Dec. 18). And: “Country music star Garth Brooks is being sued for allegedly limiting wheelchair seating at a concert so ‘pretty women’ could sit in the first two rows. Brooks’ attorney denied the allegation, saying people in the front rows are generally Brooks’ friends. A judge ruled Friday that the complaint can proceed to trial, but said Brooks’ liability is limited because he had no control over concert operations at Seattle’s Key Arena.” (“Brooks accused of discrimination”, AP/Washington Post, Dec. 17).
December 29, 2000-January 2, 2001 — Enviro litigator: debate belongs in Congress, not courts. We promise we didn’t make up the following quote, though we understand why it might astound readers familiar with the environmental movement’s record over the past three decades of heading for court in quest of victories it couldn’t win in Congress: “Howard Fox, a lawyer with the Earthjustice Legal Defense Fund [commenting on a pending high court case which could invoke the “nondelegation” doctrine to strike down EPA-set air standards], said that industry should take its battles over national environmental policy to Congress rather than pressing the Supreme Court to overturn half a century of legal precedents that allowed Congress to delegate authority to the regulatory agencies. ‘We think EPA’s policy on this issue is a good policy,’ said Fox, who is representing the American Lung Association in the case. ‘But if someone wants to have a debate on public policy, it should be in the Congress, not the courts.'” (Margaret Kriz, “Trying to Roll Back the Regulators”, National Journal, Nov. 4, not online). See also Gregg Easterbrook, “Green values”, The New Republic, Nov. 13).
December 26-28 — That’ll teach ’em. In the largest personal-injury verdict ever handed down against the city of Chicago, a jury has ordered the city to pay $50 million to the parents of 19-year-old Douglas Gant, who died of an asthma attack. The ambulance arrived eight and a half minutes after the mother’s 911 call, but lawyers argued that it should have come sooner and that in the mean time operators should have given the family instructions on resuscitation, all of which “constituted ‘willful and wanton misconduct,’ the standard for erasing municipal immunity.” Just the sort of development sure to attract talent into the emergency services, at least if you believe the law schools’ invisible-fist theory. (Margaret Cronin Fisk, “911 Incident Brings $50 Million Award”, National Law Journal, Dec. 13)(& letter to the editor from lawyer for Gant, May 7, 2004).
December 26-28 — Appearance-blind hiring? Green-haired Santas, take hope! A popular marketing strategy among hotels, restaurants and other hospitality businesses is to differentiate themselves by style, with some going for a hip look, others dignified, others conveying a mood of family fun, and so forth. “But when hoteliers try to control the look and feel of their personnel, they can run into big legal trouble.” They may be violating employment law if they want to hire only “lithe” or “athletic-looking” personnel, for example. However, Colonial Williamsburg, the historical re-creation in Virginia, did manage to escape being sued after it asked an employee with a wild dye job to redo the look of her hair to something more “natural-looking”. (Virginia Postrel, “When the ‘Cool’ Look Is Illegal”, Forbes, Nov. 27).
December 26-28 — Updates. Further developments in stories already covered in this space:
* The tactic that occurred to various businesses of demanding that their insurance companies pay the cost of their Y2K remediation efforts, under “sue and labor” clauses originally arising from maritime emergencies (Sept. 16, 1999), has met with a setback in the first court to rule on the issue. Justice Charles E. Ramos of State Supreme Court in Manhattan ruled that the Xerox Corp. should not have waited for three years, during which it spent $138 million on the Y2K problem, before notifying its insurer that it was hoping to pass the costs along. (Barnaby J. Feder, “Court Rules on Year 2000 Claim”, New York Times, Dec. 22 (reg)).
* Cameras in the hospital: a New Jersey appeals court has set aside Cooper Medical Center’s rule against legal photography (see Oct. 18) so as to allow a lawyer into its trauma unit to take pictures of a client (Randall J. Peach, “Court Overrides Hospital’s Ban on Photographs in Intensive Care Unit”, New Jersey Law Journal/Law.com, Dec. 4).
* In the latest sign that “baby Castano” (statewide class action) tobacco cases are not faring well, a New York court has rejected the idea of certifying a statewide class of ill smokers to sue tobacco companies (“NY court rejects smokers’ class-action certification”, Reuters/FindLaw, Nov. 30).
December 22-25 — Victory in Philadelphia. “A federal judge yesterday dismissed Philadelphia’s lawsuit against gun manufacturers, ruling that the city and several civic groups that joined the suit did not have legal standing to sue.” Even if the plaintiffs had survived the standing issue, declared federal judge Berle M. Schiller, their “novel legal theories” would have failed as a matter of law. “The city’s drive to sue gun manufacturers began three years ago, under Mayor Edward G. Rendell. However, Rendell, who has ambitions to run for governor in 2002 in a state [Pennsylvania] that is famously pro-gun rights, eventually balked at filing a suit.” His successor as mayor, John Street, did proceed to sue. Many other cities’ gun suits have also been dismissed, most recently Chicago’s. (Frederick Cusick, “Court rejects city gun lawsuit”, Philadelphia Inquirer, Dec. 21).
December 22-25 — Suits even ATLA admits are frivolous dept. An inmate at a Texas prison sued Penthouse magazine, saying its recent photo spread of presidential accuser Paula Jones was insufficiently pornographic. Federal judge Sam Sparks dismissed the suit and fined the prisoner $250 for frivolous litigation, adding to his opinion a 12-line poem which concluded: “Life has its disappointments. Some come out of the blue/ But that doesn’t mean a prisoner should sue.” (“Dissatisfied Customer”, Reuters/ABCNews.com, Dec. 20)
December 22-25 — Britain’s delicate soldiery. The chief of the British military staff, General Sir Charles Guthrie, has delivered a stinging attack on “what he called a culture of ‘risk aversion’, warning of the prospect of young officers being sued by their platoons for leading men into action which could lead to death or injury. … In a swipe at the ‘litigious nation’ Britain was becoming, Sir Charles expressed surprise that policemen involved in the Hillsborough football disaster were awarded compensation for the horrors they had to cope with. … He added: ‘But what really concerns me about the creeping advance of litigation is that it will breed a cautious group of leaders who may step back from courageous decisions for fear that they will be pursued through the courts if it all goes wrong. … There is a culture of risk aversion developing in society which is anathema to servicemen. We are not foolhardy but our profession requires a degree of decisiveness, flair and courage which sits badly with some of the more restrictive practices of modern employment legislation.'” In particular, Guthrie assailed the idea recently floated by figures within British officialdom (see Sept. 29, Oct. 16) that the military should be compelled to accept disabled recruits: “we need to guard against such ill-conceived ideas in future”. (Richard Norton Taylor, “Defence chief lays into culture of ‘risk aversion'”, The Guardian (UK), Dec. 20). (“Armed Forces ‘under threat from human rights legislation'” (text of speech), Daily Telegraph, Dec. 21; Michael Smith, “Guthrie attacked over ban on disabled”, Daily Telegraph, Dec. 21; “General alert” (leader/editorial), Dec. 21). And the U.K. defense ministry has announced that the noise of military brass bands, as well as that from gunfire during infantry training exercises, is in violation of occupational-safety regulations safeguarding workers from excessive noise. “‘One solution would be to provide ear protectors during training, but then soldiers couldn’t hear their sergeant major giving orders,'” said a spokesman. (“British Army Bands May Have to Pipe Down”, Reuters/Excite, Dec. 21).
December 22-25 — Not pro bono, not nohow. The roundtable discussion in the November Harper’s on slave reparations lawsuits (see Oct. 25, July 14) was going along quite merrily, and then, as American Lawyer tells the tale, “came a conversation-stopper, when one panelist had the nerve to suggest that the lawyers toil without pay:”
Alexander Pires, Jr.: So would you all work for free?
Dennis Sweet: What?
Richard Scruggs: Um.
Willie Gary: Clients sometimes try to negotiate me down to 10 percent on a case, and I say, “Why would you want me working unhappy for you? [If I’m unhappy,] I’ll get you 100,000 bucks. If you got me happy, I’ll get you 2 million.”
Pires: Maybe I’m wrong.
Jack Hitt (moderator): I guess that issue’s resolved. (Harper’s, November; quoted in American Lawyer, Dec. 2000)
December 22-25 — Welcome visitors. Among the many personal websites linking to Overlawyered.com: Ellen’s Place, Jocelyn Payne, Whoozyerdaddy (Oct. 10), Carl Riegel and Melissa Dallas, Paul Falstad, and Frank Cross (Siskiyou County (Calif.) Amateur Radio — Aug. 3).
December 21 — Errin’ Brockovich? “An arbitrator in Ventura County, Calif., ruling on a legal malpractice case involving a law firm made famous by the film ‘Erin Brockovich‘, found that Brockovich’s testimony in the arbitration proceeding ‘was hardly credible’,” notes the Wall Street Journal‘s Opinion Journal. Former client Bilal Baroody had sued the law firm of Masry and Vititoe after losing more than $400,000 in a real estate deal on which it had represented him. Arbitrator Jeffrey Krivis wrote that the Masry/Brockovich firm had been “preoccupied with other significant matters” during the episode, which occurred while the firm was litigating the Hinkley, Calif. toxic case portrayed in the Julia Roberts movie. “[Faulty representation] is evidenced not only by the poor result, but also by the firm’s overall lack of professionalism; by the firm’s putting its own interests above those of the client; and by the firm playing fast and loose with the rules of professional conduct,” wrote Krivis. Partner Ed Masry criticized the findings as mistaken and as reflecting the arbitrator’s excessive credence in Baroody’s witnesses; it is not known whether his professional liability insurer will appeal. Moreover, “a claim isn’t necessarily because you did something wrong,” Cathy Hastings, insurance manager for the State Bar of California, told a reporter. “It’s only because someone decided to sue you.” That last strikes us as a noteworthy concession from a bar association, and we just wish it would be forthcoming more often when the topic was something other than claims against lawyers themselves. (Brad Smith, “Law firm made famous by film ruled negligent in case”, Ventura County Star, Dec. 13).
December 21 — ADA requires renting to addiction facility. A jury has found that the port of Baltimore violated the Americans with Disabilities Act when it declined to lease berth space to a ship housing a residential treatment program for recovering drug addicts. Officials of the Maryland Port Administration had considered a working port an unsuitable location for such a facility. The jury did turn down the drug program’s request for millions of dollars in damages, however. Drug users in treatment programs are deemed disabled under the ADA and enjoy its protection. (Kate Shatzkin, “Judge orders long-term lease for ship treating drug addicts”, Baltimore Sun, Dec. 12).
August 18-20 — Why the bad guys can’t stand John Stossel. The ABC News correspondent is the one TV reporter who again and again has exposed and ridiculed in devastating style the abuses of litigation and misconduct of lawyers, the excesses of scare-environmentalism, and countless instances of over- and mis-government (his hourlong special “The Trouble With Lawyers” a couple of years back is just one of many highlights; Stossel’s website at ABC). You can bet he’s made a long list of enemies in the course of doing this, and now, after a flub by his staff in a report on organic foods (for which he apologized last Friday on camera) there’s a well-organized campaign under way to take his journalistic scalp. That would reduce from one to zero the number of prominent contrarian TV voices on many of these issues, leaving in place, of course, the large amount of vigorous advocacy journalism from the point of view opposite to his. A recent New York Times roundup on the controversy quotes our editor (Jim Rutenberg and Felicity Barringer, “Apology Highlights ABC Reporter’s Contrarian Image”, Aug. 14); if you wonder what sorts of grossly misleading stories the network newsmagazines have run over the years without anyone’s feeling obliged to apologize for them, check out our article “It Didn’t Start With NBC Dateline“.
Now the Competitive Enterprise Institute has launched a website project devoted to documenting and exposing the campaign to get John fired, and to collecting letters, petition signatures, and other signs of support so that ABC will know how big a fan base he has rooting for him. (SaveJohnStossel.org, temporarily hosted at counterprotest.net/stossel).
August 18-20 — “Caffeine added to sodas aims to addict — study”. Because most consumers in a small study could not tell by taste whether a soda had caffeine in it or not, some researchers at Johns Hopkins arrived at the conclusion that the substance appears in sodas for the sole purpose of “addicting” consumers. (Most of the biggest mass-market sodas offer a choice of caffeinated and non-caffeinated versions; typically the latter is considerably less popular with consumers, who are presumably helpless to choose between the products, enslaved as they are by their addiction.) “The study appeared in Archives of Family Medicine, which is published by the American Medical Association”. (“Pop made to hook drinkers”, Reuters/Detroit News, Aug. 15; “Cola makers rip study on caffeine addiction”, AP/Spokane Spokesman-Review, Aug. 15). Advocates who have participated in the demonization of the tobacco industry and other businesses have frequently denied that the food industry is next on the list. It’s certainly on some folks’ list, however. Last year Yale University researcher Kelly Brownell said: “I have called the food environment in the United States toxic … The food companies and their advertisers are, in fact, luring our children into deadly behavioral patterns … Sooner or later, the food companies will be considered in the same way we regard the tobacco industry.” (“Regulation by Litigation: The New Wave of Government-Sponsored Litigation”, sponsored by Manhattan Institute, Chamber of Commerce of the U.S., and Federalist Society, June 22, 1999, conference proceedings)
August 18-20 — Weekend reading: Macaulay’s bicentenary. Your editor being a longtime admirer of the great classical liberal Thomas Babington Macaulay, his latest Reason column is devoted to appreciating the Whig historian’s written legacy on the 200th anniversary of his birth (Walter Olson, “Confessions of a Macaulay Fan”, Reason, August/September). An outfit called Electric Book is generous enough to webpost downloadable versions of many of his essays, free for individual use (zip files of PDF documents).
August 18-20 — Snakes’ rights not always paramount. Notwithstanding endangered species law, New York environmental authorities have decided not to press charges against 72-year-old Phillip Wheaton for killing a protected rattlesnake that had bitten him. Wheaton had just stepped from his car on a rural road in Cameron, N.Y. when the timber rattler bit him on the leg. Wheaton proceeded to hit the snake with his cane, injuring it; it was taken to a veterinary hospital where it later died. “I had a fight with that snake and I won,” Wheaton said later. “I didn’t cause no fight with that rattlesnake but he caused it with me.” (“Slain serpent”, AP/Fox News, Aug. 16). Last year (Oct. 12) we reported on a court’s ruling, also in New York, that a private landowner was obliged to host rattlers on its property; it ordered the tearing down of a “snake-proof” fence that had prevented the venomous creatures from approaching an area where humans were at work.
August 16-17 —Fortune on Lerach. Don’t miss this long but grippingly reported account of the rise, prosperity and current woes of the world’s most widely feared plaintiff’s securities lawyer, Bill Lerach of the west coast office of Milberg, Weiss. Full of remarkable material new to us (Peter Elkind, “The King of Pain Is Hurting”, Fortune, Sept. 4). Earlier this summer the same magazine published a colorfully detailed account of infighting among the troop of plaintiff’s lawyers angling to bring down the HMO industry (John Helyar, “They’re Ba-a-ack!”, Fortune, June 26).
August 16-17 — Okay to make lemonade. In Eustis, Fla., the city government has backed down from an inspector’s attempt to close down the lemonade stand that nine-year-old Rachel Caine runs across the street from her home. (Stephanie Erickson, “Eustis officials back down from order to make girl, 9, close lemonade stand”, Orlando Sentinel/Ft. Lauderdale Sun-Sentinel, Aug. 9). And in Longmont, Colo., 11-year-old “Soda Girl” Caitlin Rezac is back in business with her fizzy-refreshment stand after a run-in with the Boulder County health department, which had busted her for operating without a hand sink and $110 license; a local business donated the sink (search Denver Post archives on “Caitlin Rezac” (excerpts free, fee for full story); letter to the editor from county official Ann Walters, Boulder Daily Camera, Aug. 12 (scroll) (via Liberzine)).
August 16-17 — Olympics website’s accessibility complaint. The United States isn’t the only place where controversy is simmering over websites that “exclude” blind and other disabled users (by not adopting design and syntax that cater to them). At a recent hearing of the Human Rights and Equal Opportunity Commission in Australia, organizers of the Sydney Olympics defended themselves against charges that they hadn’t made their website usable by the vision-impaired. (Rachel Lebihan, “Olympics web site riddled with blind spots”, ZDNet, Aug. 9). America Online has reached a provisional settlement of the complaint filed against it by the National Federation of the Blind (see Nov. 5); the online service pledges to alter its software to bring it into fuller compatibility with screen reader technology and says it will train its employees to be sensitive to disabled users’ needs, in exchange for which NFB agrees to postpone suing for a year (Oscar S. Cisneros, “AOL Settles Accessibility Suit”, Wired News, July 28). Also: a clip we missed earlier on Congress’s February hearing on this topic: “Do Web Sites Violate the Americans with Disabilities Act?”, TechLawJournal, Feb. 10.
August 16-17 — “City gun suit shot down on appeal”. An appeals court has unanimously upheld a lower court’s dismissal of the city of Cincinnati’s lawsuit against the gun industry, likening that suit “to the ‘absurdity’ of suing the makers of matches because of losses from arson.” Prominent tort attorney Stanley Chesley (see June 1, March 30), representing the city, says he will appeal to the Ohio Supreme Court, which, ominously for the gunmakers, is currently controlled by a majority of justices well disposed to trial-lawyer arguments (see May 8, 2000; Aug. 17 and Aug. 18, 1999). (Dan Horn, Cincinnati Enquirer, Aug. 12; “Cincinnati can’t sue gunmakers for damages, court rules”, Reuters/FindLaw; text of decision (Cincinnati v. Beretta; retrievable Word document, not website).
August 16-17 — Web-copyright update: “Dialectizer” back up, “MS-Monopoly” down. The “Dialectizer“, a website that will translate another page of your choice into a variety of stagey dialects including Redneck, Cockney, Elmer Fudd and Pig Latin, is back up and running; we reported May 18 that the site had closed itself down for fear of being sued by businesses that might view such automated translation of their websites’ contents to be an infringement on their copyright. However, the “MS-Monopoly” parody site, which adapted elements from the popular board game Monopoly to comment on the Microsoft case (see Dec. 3) has been pulled down at the behest of lawyers for toymaker Hasbro, which puts out the real game: “MS-Monopoly.com ‘Cease and Desist’ed by Hasbro Lawyers“. In Forbes, Virginia Postrel says big companies are being shortsighted when they sic lawyers on fan sites that happen to use copyrighted material; News Corp.’s Fox properties, for example, have issued rumbling letters to online enthusiasts of cult shows such as The X-Files and Buffy the Vampire Slayer. (“The Shortsighted Site Busters”, Forbes/Reason Online, July 24).
August 15 — Plastic surgeons must weigh patients’ state of mind, court says. By a 3-2 margin, a New York court has allowed a claim to proceed against a cosmetic surgeon for conducting liposuction and abdominoplasty procedures on a patient while “fail[ing] to take into account that she suffered from Body Dysmorphic Disorder, or a preoccupation with a minor or imaginary physical flaw,” which meant that her consent to the procedures might not really count as informed. The patient made at least fifty visits to the doctor’s office. (Michael A. Riccardi, “Doctor Must Weigh Patient’s Mental State”, New York Law Journal, June 29; Renee Kaplan, “What Should Plastic Surgeons Do When Crazy Patients Demand Work?”, New York Observer, July 31). (Update June 11, 2001: she loses in New York’s highest court). The American Life League, an anti-abortion group, plans to take a leaf from its counterparts on the left and launch a systematic litigation campaign based on malpractice, consumer protection and other theories to shut down abortion clinics, while a conservative writer suggests approaching sympathetic state attorneys general and getting them to file a tobacco-style megasuit against abortion providers (Julia Duin, “Pro-life advocates aim to hit clinics in the pocketbook”, Washington Times, Aug. 10; Chuck Morse, “Big Tobacco and the Abortion Industry”, EtherZone, June 12). In Erie, Pennsylvania, a judge has declared a mistrial in a medical malpractice trial after a juror fainted during the trial and the defendant physicians revived him; the judge thought it necessary, lest this act of kindness be thought to have improperly prejudiced the proceedings, to restart the whole ordeal from scratch (“Doctors accused of malpractice aid juror who fainted”, AP/CNN, Aug. 11). And Overlawyered.com‘s page on law and medicine has been selected as a resource by the MedExplorer medical search site.
August 15 — The Veep that got away. It’s been widely reported that the other finalist in the process by which Al Gore picked his running mate was youthful Sen. John Edwards of North Carolina, who’d have been an equally noteworthy pick from litigation reformers’ perspective but for opposite reasons: after briefly representing record companies Edwards “moved to Raleigh, N.C., in 1981 and became a plaintiffs’ lawyer. That made him a millionaire. His fortune has been estimated at $20 million to $50 million.” Edwards proceeded to sink an estimated $10 million from his own pocket into his first and only political campaign, knocking off incumbent Republican Lauch Faircloth by 4 points. The Gore camp saw Edwards as telegenic, a skillful speaker and from an important state, but worried that his past could backfire among voters unhappy with trial lawyers for “doing things like suing doctors and winning big verdicts, which then drive up health care costs — and Edwards has been an incredibly successful one of that breed.'” (Michael Kramer, “Aides: Al Leaning Toward Edwards”, New York Daily News, Aug. 6).
August 15 — “Teams liable for fans’ safety”. A Colorado court of appeals has ruled that “sports teams must protect fans from known dangers — such as flying hockey pucks — unless lawmakers specifically exempt the teams from such liability.” Diane Smith, a lawyer for the now-defunct Denver DareDevils roller hockey team, said fans sit in the more hazardous area near the goal because they want the best view and “if you are going to sit where the action is, there are risks that go along with that”; appeal to the state’s high court is planned (Howard Pankratz, Denver Post, Aug. 4).
August 14 — Bush-Lieberman vs. Gore-Nader? Our editor contributes a guest column today (pinch-hitting for the vacationing Holman Jenkins) for Opinion Journal, the Wall Street Journal editorial page’s new online venture. The column discusses the strong record Sen. Joe Lieberman has compiled on litigation reform, the dilemma this poses for Vice President Gore, the wrath it calls down on his head from fellow Connecticut resident Ralph Nader, and the reasons why America is unusual in treating the pro-litigation position as “progressive” when it isn’t deemed to be such in much of the rest of the world (“Not All Liberals Love Lawsuits”, Aug. 14).
August 14 — “Disney must pay $240 million in sports park lawsuit”. A jury in Orlando “ruled Friday that the Walt Disney Co. stole the idea for a sports theme park from a former baseball umpire and his architect partner and must pay $240 million in damages,” a sum that the judge has discretion to increase because the jury found Disney acted with malice. “The notion that we had to steal the idea from the plaintiffs, an idea as old as ancient Greece, is preposterous,” said Disney general counsel Lou Meisinger, who said “the plaintiffs lawyers had tried to frame the case as ‘little people against big business’ and attempted to ‘inflame their prejudice.’ Plaintiffs’ lawyer Willie Gary”, well known for his work on the Loewen and Coke cases, “called Disney’s reaction ‘sour grapes.’ ‘We beat ’em and quite frankly we’ll beat ’em again if we need to,’ Gary said. ‘They’re crying like little babies.'” Another member of the team of plaintiff’s attorneys was Johnnie Cochran of O.J. Simpson case fame (CNN, Aug. 11; Beth Piskora, “Ump and architect sue Disney for $1.5 B”, New York Post, Aug. 10; “The Mouse Stole Idea”, Aug. 12; Yahoo Full Coverage).
August 14 — “Airbag chemical on trial”. Because of the airbag in her $30,000 Mercedes, Edith Krauss and her husband walked away from a 1997 crash that otherwise might have killed them. But Krauss is suing the luxury automaker anyway: she “contends that she has been plagued by throat ailments since the crash and they stem from her inhaling sodium azide, the chemical that allows for the forceful deployment of airbags.” The company says the concentration of the chemical in an airbag is too low to cause harm. Trial began last week in Elizabeth, N.J. (MaryAnn Spoto, Newark Star-Ledger, Aug. 8).
August 14 — Embarrassing Lawsuit Hall of Fame. Among recent lawsuits with details so embarrassing it’s a wonder anyone would file them: a Barberton, Ohio woman is suing an acquaintance in small claims court, saying he reneged on a promise to let her pay in sexual favors for part of the sale price for a truck (Stephanie Warsmith, “An unusual ‘contract’ is in court”, Akron Beacon Journal, Aug. 10); the Massachusetts Commission Against Discrimination has recommended dismissal of a complaint by an employee of the town of Plymouth, who had charged that a town official inflicted a hostile working environment on her by (among other things) subjecting her to flatulence, the commission reasoning that the passing of gas is not sexual in nature (Aug. 27, 1999; not online, case referred by UCLA law prof Eugene Volokh); and an Ottawa man has sued a city hospital, saying it misdiagnosed a very intimate injury committed to his person after he got on stage at a club and allowed an exotic dancer to sit on his chest (Glen McGregor, “Man sues hospital over testicle removal”, Ottawa Citizen/National Post, Aug. 8; more exotic dancer litigation: July 26, May 23 (also from Canada), Jan. 28).
August 11-13 — Litigation reform: the Texas experience. Citizens for a Sound Economy releases a report evaluating the results of the 1995 package of litigation reforms enacted in Texas under Gov. George W. Bush (more about package, from Governor’s office). Prepared by the Perryman Group of Waco, Tex., the report estimates that the reforms contributed significantly to reducing prices, raising personal incomes and stimulating economic development in the Lone Star State, with resulting benefits to the average Texas household of $1,078 a year. (“The Impact of Judicial Reforms on Economic Activity in Texas”, Aug. 9; executive summary links to PDF document).
Earlier, Texas insurance commissioner Jose Montemayor estimated that insurance buyers in the state would save a cumulative $2.9 billion by 2000 through mandated rate reductions linked to the lawsuit reforms: “Tort reform has been a tremendous success.” (“Commissioner says tort reform saves Texans $2.9 billion”, AP/Abilene Reporter-News, Oct. 2, 1999). Trial-lawyer-allied groups soon attacked the figures (Terrence Stutz, “Tort Reform Savings on Insurance Overstated”, Dallas Morning News, Dec. 21, 1999, reprinted at Kraft Law Firm site), and have gone to considerable lengths to publicize their case since then (see Richard A. Oppel Jr. and Jim Yardley, “Bush Calls Himself Reformer; the Record Shows the Label May Be a Stretch”, New York Times, March 26, 2000, excerpted at Democratic National Committee site; now 404 Not Found, but GoogleCache has preserved a version). For a riposte from the reform side, see Tom Beaty, “Legal reform has brought benefits to business”, Houston Business Journal, Feb. 21, 2000.
And see: Constance Parten, “Texas Holds Its Own in Insurance Rates”, Insurance Journal, June 26, 2000 (reform package wasn’t expected to bring major savings in auto insurance, as opposed to commercial and medical lines, but did so anyway); Lone Star Report, Aug. 27, 1999 (scroll halfway down for item); and Texans for Lawsuit Reform. Citizens Against Lawsuit Abuse, Houston, has posted a variety of materials on the controversy at its website, including a summary of reforms; Jon Opelt, “$3 Billion Hardly Chump Change“; and Cora Sue Mach, “Governor Bushwhacked over Lawsuit Savings“. (DURABLE LINK)
August 11-13 — “Ohio cracks down on keggers”. Under a new Ohio law, people who want to give parties for which they’ll buy five or more kegs of beer must register the location of the party in advance, wait five days to take possession of the kegs, and “allow liquor agents and police to enter the property to enforce state liquor laws, a requirement that bothers the American Civil Liberties Union and others.” Several states have or are considering similar laws. “Maryland has required keg registration since 1994 to allow the containers to be traced to the buyer and the seller, both of whom are held accountable if minors are caught drinking the alcohol.” (Liz Sidoti, AP/St. Louis Post-Dispatch, Aug. 8).
August 11-13 — Stay away, I’ve got a court order. Last year Maryland passed a new law allowing residents to apply for a civil restraining order to keep away people who they say have frightened or harassed them, a type of protection long available in matrimonial cases. Now the law is being used more than proponents expected, and not just by unmarried paramours and other intimates but as a way to settle — or escalate — spats among schoolmates, neighbors, co-workers and virtual strangers. (Donna St. George, “Residents Seeking ‘Peace’ Invade Md. Courts”, Washington Post, Aug. 7).
August 11-13 — “Not even thinking about” fees. With appeals and other legal maneuvering expected to last quite a while after a Miami jury’s $145 billion punitive damage award against tobacco companies, Knight-Ridder asked plaintiff’s attorney Stanley Rosenblatt about fees he might reap from the action. “It’s so far down the road that we’re not even thinking about it,” he claimed. (Uh-huh.) “Generally lawyers’ fees in class-action suits are about 25 to 30 percent of the award or settlement,” the news service reports, though it speculates that trial judge Robert Kaye might approve a smaller fee award than that, perhaps a mere $1 billion. Rounded off in the overall context, that would count as almost nothing, right? (“Smokers’ lawyers could get $1B — or zilch”, Knight Ridder/Norwalk (Ct.) Hour, July 26, not online). Plus: commentary by the Cato Institute’s Robert Levy (“Litigation Lunacy in Florida”, Cato Daily, July 31).
June 30-July 2 — “Backstage at News of the Weird”. Chuck Shepherd writes the sublime “News of the Weird” feature, which is syndicated weekly to major papers and alternative weeklies nationwide. From time to time he’s asked which are “his favorite online scanning sites for weird news”. This site came in #4 of 6 — you’ll want to check out the whole list. (June 19).
Remarkable stories from the legal system turn up nearly every week both in “News of the Weird” and in the more recently launched “Backstage” column. Here’s one from the same June 19 number: “An Adel, Ga., man sued the maker of Liquid Fire drain cleaner for this injury (and follow this closely): LF comes in a special bottle with skull and crossbones and many warnings, but our guy thought, on his own that the bottle’s spout just might drip, so he poured the contents into his own bottle (which he thought would be drip-proof), whose packaging wasn’t able to withstand the LF and began to disintegrate immediately, causing the contents to spill onto his leg. So now he wants $100k for that.”
June 30-July 2 — Supreme Court vindicates Boy Scouts’ freedom. Matthew Berry, an attorney with the Institute for Justice who helped write an amicus brief for Gays and Lesbians for Individual Liberty, explains why the principle of freedom of association that protects the Boy Scouts from government dictation of its membership is also crucial in protecting the freedom of gays and lesbians (“Free To Be Us Alone”, Legal Times, April 24) (case, Boy Scouts of America et al v. Dale, at FindLaw). See also Independent Gay Forum entries on the subject by Tom Palmer and Stephen H. Miller.
June 30-July 2 — “DOJ’s Got the Antitrust Itch”. After a decade or two of quiescence, antitrust is on the rampage again, led by Joel Klein and other officials at the Justice Department’s Antitrust Division. (Declan McCullagh, Wired News, June 28).
June 30-July 2 — “Being a Lefty Has Its Ups and Downs”. Letter to the editor published in yesterday’s New York Times from our editor runs as follows: “To the Editor: At the City Council’s hearing on whether left-handed people should be protected by anti-discrimination law (Elizabeth Bumiller, “Council Urged to End a Most Sinister Bias”, June 22), a high school student called it discriminatory that banisters and handrails are often on the right side of public stairwells — at least from the perspective of someone climbing up. But people walk on stairs in both directions. It would seem the same stairwell that oppressively discriminates against lefties on the way up also discriminates against righties on the way down. Can they sue, too?
“The student also asserted that ‘societal discrimination results in the death of the left-handed population an average of 14 years earlier than the right-handed population.’ However, the study that purported to reveal such a gap was soon refuted. A 1993 study by the National Institute on Aging found no increase in mortality associated with handedness — not surprisingly, since insurance actuaries would long ago have made it their business to uncover such a correlation.” — Very truly yours, etc. (no longer online) (more on life expectancy controversy: APA Monitor, Psychological Bulletin, Am Journal Epidem — via Dr. Dave and Dee).
Postscript: Scott Shuger in Slate “Today’s Papers” promptly took a whack at us over the above letter, claiming we didn’t realize that big stairwells at places like high schools have two-way traffic patterns where people keep to the right, leaving lefties without a rail for the handy hand whether headed up or down. But if anything, this proves our point that the issue isn’t, as had been claimed, the insensitive decision to place handrails on one side but not the other: typically these larger stairwells have handrails on both sides. Instead the broader culprit for those who wish to steady themselves with their left hand is the walk-on-the-right convention. Had the advocate of an antidiscrimination law acknowledged that point, however, much of the steam would have gone out of her argument, since few in her audience would have been inclined to view the walk-on-the-right convention as fixable “discrimination”. Nor is there anything in the original coverage to indicate that her gripe was at the absence of center rails, which have inconveniences of their own.
June 29 — Failure to warn about bad neighborhoods. “A Florida jury has awarded $5.2 million to the family of a slain tourist after finding that Alamo Rent-A-Car failed to warn the victim and her husband about a high-crime area near Miami.” Dutch tourists Gerrit and Tosca Dieperink, according to the National Law Journal, “rented an Alamo car in Tampa and planned to drop it off in Miami”. When they stopped in the Liberty City area of Miami to ask directions, they were targeted by robbers who recognized the car as rented, and Mrs. Dieperink was shot and killed. Lawyers for her survivors sued Alamo, saying it was negligent for the company not to have warned customers — even customers renting in Tampa, across the state — of the perilousness of the Liberty City neighborhood, where there’d been numerous previous attacks on rental car patrons. After circuit judge Phil Bloom instructed the jury that Alamo had a duty to warn its customers of foreseeable criminal conduct, jurors took only an hour of deliberations to find the company liable, following a seven-day trial. (Bill Rankin, “Alamo’s Costly Failure to Warn”, National Law Journal, May 22; Susan R. Miller, “Trail of Tears”, Miami Daily Business Review, May 8.)
Which of course raises the question: how many different kinds of legal trouble would Alamo have gotten into if it had warned its customers to stay out of certain neighborhoods? Numerous businesses have come under legal fire for discriminating against certain parts of town in dispatching service or delivery crews (“pizza redlining”); one of the more recent suits was filed by a civil rights group against online home-delivery service Kozmo.com, which offers to bring round its video, CD and food items in only some neighborhoods in Washington, D.C., mostly in affluent Northwest. (Elliot Zaret & Brock N. Meeks, “Kozmo’s digital dividing lines”, MSNBC/ZDNet, April 12; Martha M. Hamilton, “Web Retailer Kozmo Accused of Redlining”, Washington Post, April 14).
June 29 — “Angela’s Ashes” suit. Frank McCourt (Angela’s Ashes, ‘Tis) and his brother Malachy (A Monk Swimming) have had a runaway success with their memoirs of growing up poor in Ireland and emigrating to America (4 million copies have sold of Angela’s alone). Now they’re being sued by Mike Houlihan, “who in the early 1980s raised $20,750 to stage and produce a McCourt brothers play called ‘A Couple of Blaguards,'” also based on their early life. The play had only modest success, though it has begun to be revived frequently with the success of the memoir books. Mr. Houlihan says he and several others are entitled to 40 percent of the profits from Angela’s Ashes and the other memoirs because they are a “subsidiary work” of the play. “That would be a nice piece of money, wouldn’t it?” says Frank McCourt, who says his old associate “has hopped on America’s favorite form of transportation — the bandwagon”. (Joseph T. Hallinan, “Backers of McCourt’s Old Play Say They Are Due Royalties”, Wall Street Journal, June 6 (fee)).
June 29 — “Trying a Case To the Two Minute Mind”. California attorney Mark Pulliam passes this one on: a recent brochure from the San Diego Trial Lawyers Association offered a sale on educational videos for practicing litigators, of which one, by Craig McClellan, Esq., was entitled “Trying a Case To the Two Minute Mind; aka Trial by Sound Bite” (worth one hour in continuing legal education credits). According to the brochure, “The presentation shows how to streamline each element of a trial based on the fact that most jurors are used to getting a complete story within a two minute maximum segment on the evening news. This video demonstrates the effectiveness of visual aids, impact words and even colors, to influence the juror’s perception and thought process in the least amount of time.”
June 28 — Oracle did it. Today’s Wall Street Journal reports that the big software maker and Microsoft rival has acknowledged it was the client that hired detective firm Investigative Group International Inc. for an elaborate yearlong operation to gather dirt on policy groups allied with Microsoft; the detective firm then offered to pay maintenance workers for at least one of the groups’ trash (see June 26). “The IGI investigator who led the company’s Microsoft project, Robert M. Walters, 61 years old, resigned Friday after he was named in stories about the case.” Oracle claims to have no knowledge of or involvement with illegalities — buying trash isn’t in itself necessarily unlawful — and IGI also says it obeys the law. (Glenn R. Simpson and Ted Bridis, “Oracle Admits It Hired Agency To Investigate Allies of Microsoft”, June 28 (fee))
June 28 — Born to regulate. Opponents say the Occupational Safety and Health Administration’s “ergonomics” proposals would tie America’s employers in knots in the name of protecting workers from carpal tunnel syndrome and other repetitive motion injuries (see March 17), and resistance from the business community is stiff enough that the regs ran into a roadblock in the Senate last week. However, Ramesh Ponnuru at National Review Online reports that “Marthe Kent, OSHA’s director of safety standards program and head of the ergonomics effort, couldn’t be happier at her job. ‘I like having a very direct and very powerful impact on worker safety and health,’ she recently told The Synergist, a newsletter of the American Industrial Hygiene Association. ‘If you put out a reg, it matters. I think that’s really where the thrill comes from. And it is a thrill; it’s a high.’ Later in the article, she adds, ‘I love it; I absolutely love it. I was born to regulate. I don’t know why, but that’s very true. So as long as I’m regulating, I’m happy.'” (Ramesh Ponnuru, “The Ergonomics of Joy” (second item), National Review Online Washington Bulletin, June 26). See also “Senate Blocks Ergonomic Safety Standards”, Reuters/Excite, June 22; Murray Weidenbaum, “Workplace stress is declining. Does OSHA notice?”, Christian Science Monitor, June 15.
June 28 — Giuliani’s blatant forum-shopping. Time was when lawyers showed a guilty conscience about the practice of “shopping” for favorable judges, and were quick to deny that they’d attempted any such thing, lest people think their client’s case so weak that other judges might have thrown it out of court. Now they openly boast about it, as in the case of New York City’s recently announced plans to sue gun makers. The new legal action, reports Paul Barrett of the news-side Wall Street Journal, could “prove especially threatening to the industry because Mr. Hess (Michael Hess, NYC Corporation Counsel) said the city would file it in federal court in Brooklyn. The goal in doing so would be to steer the suit to the courtroom of U.S. District Judge Jack Weinstein, who is known for allowing creative liability theories. … Mr. Hess said that New York will ask Judge Weinstein to preside over its suit because it is ‘related’ to the earlier gun-liability case [Hamilton v. Accu-Tek, now on appeal.]” (See also Nov. 1). (“New York City Intends to File Lawsuit Against Approximately 25 Gun Makers”, June 20 (fee)).
June 28 — From our mail sack: transactional-lawyer whimsy. New York attorney John Brewer writes: “This may just be a bit of transactional lawyer inside humor, or it may be evidence that the agnostic and individualistic themes in our culture have finally penetrated lawyers’ contract boilerplate (which for a variety of reasons tends to be an extraordinarily conservative-to-anachronistic form of stylized discourse). According to the April 2000 issue of Corporate Control Alert [not online to our knowledge], a provision in the documentation for the 1998 acquisition of International Management Services Inc. by Celestica Inc. contained a definition which read in part as follows:
“Material Adverse Change” or “Material Adverse Effect” means, when used in connection with the Company or Parent, as the case may be, any change or effect, as the case may be, caused by an act of God (or other supernatural body mutually acceptable to the parties) …
“In a sign that some of the old certitude remains, however,” John adds, “the accompanying article referred colloquially to the clause containing this language as a “hell-or-high-water” provision without any suggestion of mutually acceptable alternative places of everlasting torment.”
June 27– Welcome New Republic readers. Senior writer Jodie Allen of U.S. News & World Report tells us we’re her favorite website, which we consider proof we’re on the right track. Writing the New Republic’s “TRB from Washington” column this week, her theme is our legal system’s willingness to entertain all sorts of remarkable new rights-assertions that might have left Thomas Jefferson scratching his head, and she says readers who want more “can monitor such cases at Overlawyered.com.” We’ll help with the following thumbnail link-guide to cases mentioned in the column: drunken airline passenger, child left in hot van, right to non-sticky candy, bank robber and tear gas device, beer drinker’s restroom suit & Disneyland characters glimpsed out of uniform, haunted house too scary, high-voltage tower climber (& second case), killer whale skinny dip, obligation to host rattlesnakes, parrot-dunking, Ohio boys’ baseball team, school administrator’s felony, stripper’s rights, and murderer’s suit against her psychiatrists. (“Rights and Wrongs”, July 3). (DURABLE LINK)
June 27 — Reprimand “very serious” for teacher. Norwalk, Ct.: “After an in-house investigation that lasted more than a month, Carleton Bauer, the Ponus Ridge Middle School teacher who gave an 11-year-old girl money to purchase marijuana, has been reprimanded with a letter in his file.” The girl’s father, who was not notified of the disciplinary action taken against the teacher but was contacted by the press, felt the teacher’s union had been allowed to negotiate too lenient a treatment for Bauer, a 31-year teaching veteran, but Interim Superintendent of Schools William Papallo called the penalty “fair and equitable”, saying, “For someone who has worked so long, a reprimand is very serious”. (Ashley Varese, “Ponus teacher ‘lacked judgment'”, Norwalk Hour, June 16, not online).
June 27 — Peter McWilliams, R.I.P. Although (see above item) there are times when our authorities can be lenient toward marijuana-related infractions, it’s more usual for them to maintain a posture of extreme severity, as in the case of well-known author, AIDS and cancer patient, and medical marijuana activist Peter McWilliams, whose nightmarish ordeal by prosecution ended last week with his death at age 50. (William F. Buckley Jr., Sacramento Bee, June 21; Jacob Sullum, Reason Online/Creators Syndicate, June 21; John Stossel/ABC News 20/20, “Hearing All the Facts”, June 9; J.D. Tuccille, Free-Market.Net Spotlight; Media Awareness Project).
June 27 — AOL “pop-up” class action. In Florida, Miami-Dade County Judge Fredricka Smith has granted class action status to a suit against America Online, purportedly on behalf of all hourly subscribers who viewed the service’s “pop-up” ads on paid time. Miami attorney Andrew Tramont argues that it’s wrong for subscribers to be hit with the ads since they’re paying by the minute for access to the service (at least if they’re past their allotment of free monthly time), and “time adds up” as they look at them — this, even though most users soon learn it takes only a second to click off an ad (“No thanks”) and even though the system has for some time let users set preferences to reduce or eliminate pop-ups. The case seeks millions in refunds for the time customers have spent perusing the ads. According to attorney Tramont, “the practice amounts to charging twice for the same product. ‘AOL gets money from advertisers, then money from subscribers, so they’re making double on the same time,’ he said.” Please don’t anyone call to his attention the phenomenon of “magazines”, or we’ll never get him out of court. (“Florida judge approves class-action lawsuit against America Online”, CNN, June 25).
June 26 — Cash for trash, and worse? We’re glad we didn’t play a prominent role in defending Microsoft in its antitrust dispute, since we’d have found it very intrusive and inconvenient to have our garbage rifled by private investigators and our laptops stolen, as has happened lately to a number of organizations that have allied themselves with the software giant in the controversy (Declan McCullagh, “MS Espionage: Cash for Trash”, Wired News, June 15; Ted Bridis, “Microsoft-Tied Groups Report Weird Incidents”, Wall Street Journal, June 19 (fee); Glenn Simpson, “IGI Comes Under Scrutiny in Attempt To Purchase Lobbying Group’s Trash”, Wall Street Journal, June 19) (fee); Ted Bridis and Glenn Simpson, “Detective Agency Obtained Documents On Microsoft at Two Additional Groups”, Wall Street Journal, June 23 (fee)). Material surreptitiously obtained from the National Taxpayers Union, Citizens for a Sound Economy, and Independent Institute soon surfaced in unflattering journalistic reportage on these groups in the New York Times, Washington Post and Wall Street Journal, and two attempts were also made to get night cleaning crews to sell the trash of the pro-Microsoft Association for Competitive Technology. They’re calling it “Gatesgate”.
In other news, the New York Observer checks into what would happen if the giant company tried to flee to Canada to avoid the Justice Department’s clutches (answer: probably wouldn’t make any difference, they’d get nailed anyway) (Jonathan Goldberg, “The Vancouver Solution”, June 12). And over at the Brookings Institution, it’s a virtual civil war with fellow Robert Crandall arguing against a breakup and fellow Robert Litan in favor (Robert Crandall, “If It Ain’t Broke, Don’t Break It Up”, Wall Street Journal, June 14; Robert Litan, “The rewards of ending a monopoly”, Financial Times, Nov. 24; Robert Litan, “What light through yonder Windows breaks?”, The Globe and Mail (Toronto), June 11, all reprinted at Brookings site).
June 26 — “Was Justice Denied?”. Dale Helmig was convicted of the murder of his mother Norma in Linn, Mo. This TNT special June 20 impressed the Wall Street Journal‘s Dorothy Rabinowitz as making a powerful case for the unfairness of his conviction (“TV: Crime and Punishment”, June 19 (fee); TNT press release April 13). At the TNT site, links will lead you to more resources on errors of the criminal-justice system both real and alleged, including “Convicted by Juries, Exonerated by Science” (DNA exonerations); “The Innocent Imprisoned“; Justice: Denied, The Magazine for the Wrongly Convicted; CrimeLynx (criminal defense attorneys’ resource); and Jeralyn Merritt, “Could This Happen To Your Spouse or Child?” (Lawyers.com).
June 26 — Updates. Catching up on further developments in several stories previously covered in this space:
* In the continuing saga of leftist filmmaker Michael Moore (see Sept. 16), who made his name stalking the head of General Motors with a camera at social and business events (“Roger and Me”) and then called the cops when one of his own fired employees had the idea of doing the same thing to him, John Tierney of the New York Times has added many new details to what we knew before (“When Tables Turn, Knives Come Out”, June 17) (reg).
* Trial lawyers are perfectly livid about that New England Journal of Medicine study (see April 24) finding that car crash claimants experience less pain and disability under a no-fault system that resolves their claims relatively quickly. Now they’re throwing everything they can find at the study, lining up disgruntled former employees to question the researchers’ motives, saying the whole thing was tainted by its sponsorship by the Government of Saskatchewan (which runs a provincial auto insurance scheme), and so forth. (Association of Trial Lawyers of America page; Bob Van Voris, “No Gain, No Pain? Study Is Hot Topic”, National Law Journal, May 22).
* A Texas judge has entered a final judgment, setting the stage for appeal, against the lawyers he found had engaged in “knowingly and intentionally fraudulent” conduct in a product liability case against DaimlerChrysler where both physical evidence and witness testimony had been tampered with (see May 23). “Disbarment is a possible consequence, as are criminal charges, but none has yet been filed.” (Adolfo Pesquera, “Judge orders lawyers to pay $865,489”, San Antonio Express-News, Jun. 23). Update: see Mar. 17, 2003.
* It figures: no sooner had we praised the U.S. House of Representatives for cutting off funds for the federal tobacco suit (see Jun. 21) than it reversed itself and voted 215-183 to restore the funds (Alan Fram, “House OKs Funds for Tobacco Lawsuit”, AP/Yahoo, Jun. 23).
June 22-25 — Antitrust triumph. With great fanfare, the Federal Trade Commission announced this spring that it had broken up anticompetitive practices in the recording industry that were costing CD buyers from $2 to $5 a disc, saving consumers at least hundreds of millions of dollars. “So, how far have CD retail prices fallen since? Not a penny … Now, retail and music executives are accusing FTC Chairman Robert Pitofsky of misleading consumers and feeding the media ‘artificially inflated’ pricing statistics, possibly to camouflage the lusterless findings of the FTC’s costly two-year investigation of CD advertising policies.” A commission spokesman says it can’t release the basis of its pricing study because it’s based on proprietary information. (Chuck Philips, “FTC Assailed on Failed CD Price Pledge”, Los Angeles Times, June 2).
June 22-25 — More trouble for “Brockovich” lawyers. Latest trouble for real-life L.A. law firm headed by Ed Masry, dramatized in the Julia Roberts hit film “Erin Brockovich“: a wrongful termination suit filed by former employee Kissandra Cohen, who at 21 years of age is the state’s youngest practicing lawyer. Cohen alleges that when she worked for Masry he “made repeated sexual advances, and when she did not respond, he fired her. Cohen, who is Jewish, also claims that Masry and other attorneys in his office made inappropriate comments about her Star of David necklace and attire” and kept copies of Playboy in the office lobby. Also recently, Brockovich’s ex-husband, ex-boyfriend and their attorney were arrested in a scheme in which they allegedly threatened that unless Masry and Brockovich saw that they were paid off they’d go to the press with scandalous allegations about the two (the sort of thing called “extortion” when it doesn’t take place in the context of a lawsuit). (“Sex Scandal for Brockovich Lawyer”, Mr. Showbiz, April 28).
June 22-25 — Compare and contrast: puppy’s life and human’s. Thanks to reader Daniel Lo for calling to our attention this pair of headlines, both on articles by Jaxon Van Derbeken in the San Francisco Chronicle: “S.F. Dog Killer Avoids Three-Strikes Sentence”, June 2 (Joey Trimm faced possible 25 years to life under “three strikes” law for fatal beating of puppy, but prosecutors relented and he was sentenced to only five years); “Man Gets Five Years In Killing of Gay in S.F.”, April 25 (“high-profile” homicide charges against Edgard Mora, whom prosecutors had “long labeled a hate-filled murderer”, resolved with five-year sentence for involuntary manslaughter.)
June 21 — And don’t say “I’m sorry”. “Be careful,” said the night nurse. “They’re suing the hospital.” First-person account of how it changes the atmosphere on the floor when the family of a patient still under care decides to go the litigation route. Highly recommended (Lisa Ochs, “In the shadow of a glass mountain”, Salon, June 19).
June 21 — Good news out of Washington…. The House voted Monday to curb the use of funds by agencies other than Justice to pursue the federal tobacco lawsuit. The Clinton Administration claims the result would be to kill the suit (let’s hope so), but it and other litigation advocates will be working to restore the money at later stages of the appropriations process, and the good guys won by a margin of only 207-197 (June 19: Reuters; Richmond Times-Dispatch/AP; Washington Post) (It soon reversed itself and restored the funds: see June 26).
June 21 — …bad news out of New York. Mayor Rudolph Giuliani has joined the ranks of gun control advocates willing to employ the brute force of litigation as an end run around democracy. “[F]ollowing the lead of many of the nation’s other large cities, [Giuliani] announced yesterday that his administration would file its own lawsuit against handgun manufacturers, seeking tens of millions of dollars to compensate New York City for injuries and other damage caused by illegal gun use.” Maybe he wouldn’t have made such a good Senator after all (Eric Lipton, “Giuliani Joins the War on Handgun Manufacturers”, New York Times, June 20).
June 21 — Stress of listening to clients’ problems. Dateline Sydney, Australia: “A court awarded [U.S.] $15,600 in damages to a masseuse who suffered depression after listening to clients talk about their problems. Carol Vanderpoel, 52, sued the Blue Mountains Women’s Health Center, at Katoomba, west of Sydney, claiming she was forced to deal with emotionally disturbed clients without training as a counselor or debriefing to cope with resultant stress.” (“Singing the Blues: Masseuse wins damages for listening to problems”, AP/Fox News, June 20; Anthony Peterson, “$26,000 the price of earbashing”, Adelaide Advertiser, June 20).
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).
April 20 — Not tonight, gotta coach my kids. “Children as young as 7 and 9 were coached to fake injuries in a car insurance fraud case in western Arkansas, a lawyer for the state Insurance Department said.” Eleven people in the Fort Smith area were charged with setting up liability claims by staging accidents so as to make it appear that other drivers were at fault. “Clay Simpson, an attorney for the department, said some used children as passengers and trained them to act injured after the staged crashes”. One of the adults evidently decided to add realism, according to Simpson, and “physically struck one of the small children in the head so he would have an injury … and be able to go to the hospital.” (Arkansas Insurance Department press release, April 13; Chuck Bartels, “Eleven Charged for Staging Crashes”, AP/Excite, Apr. 13; “The youngest grifters”, AP/ABC News, Apr. 14).
April 20 — Web-advertisers’ apocalypse? Most noteworthy tidbit in WSJ news story a while back on wave of privacy suits against cookie-deploying Web ad firms, quoting Fordham Law’s Joel Reidenberg, a specialist on the topic: “Even advertisers could have some liability to the extent they benefited from and participated in the DoubleClick network. ‘Anybody in the chain of information who participated in the passing off of information to others would be potential targets,’ Mr. Reidenberg says.” (Richard B. Schmitt, “Online Privacy: Alleged Abuses Shape New Law”, Wall Street Journal, Feb. 29, 2000, fee-based archive).
April 20 — Arm yourself for managed care debate. How much higher will medical costs go when Congress makes it easier to sue, and how many more families will get priced out of health insurance? How coherently will a cost control system work once it’s geared to whichever jury gets angriest? Resources: Krishna Kundu, “The Norwood-Dingell Liability Bill: Health Insurance at Risk”, Employment Policy Foundation cost study, Mar. 24; “The Problems with Punitive Damages in Lawsuits against Managed-Care Organizations”, New England Journal of Medicine, Jan. 27; Health Benefits Coalition.
April 20 — Letourneau scandal: now where’s my million? “The teen-ager who fathered two children by his former grade school teacher, Mary Kay Letourneau, is seeking damages from a suburban [Seattle] municipality and school district. Vili Fualaau, now 16, and his mother, Soona, are seeking damages of at least $1 million for emotional suffering, lost income and the cost of rearing the girls, who are in the care of the boy’s mother.” The suit charges school officials with failing to protect the boy from the amorous advances of his teacher, 38, who’s now serving a 7 1/2 year sentence for her involvement with him. “The teen, his mother and Letourneau previously have said in television appearances and in a book that the relationship was consensual.” (“Teen-age boy seeks damages in Washington state teacher sex case”, AP/CNN, Apr. 14).
April 19 — All dressed up. James and Cynthia Harnage of Norwich, Ct. are seeking $21 million in damages from Publisher’s Clearing House, the magazine sweepstakes company, which they say in or around last December sent them repeated notices marked “Document of Title” and “official correspondence from the Publisher’s Clearing House board of judges” with messages such as “Congratulations! Your recent entry was a winner! And Approved for $21 Million!” The Harnages say they came to be convinced that they would receive the grand prize in person on Super Bowl Sunday and even got all dressed up to wait for the knock on the door, but it never came. According to a local paper, Mr. Harnage describes himself as devastated by the letdown; the lawsuit alleges fraud and breach of contract and says the couple suffered emotional distress. (“Disappointed couple sues Publisher’s Clearing House”, AP/Newsday, Apr. 14; “Couple sues Publisher’s Clearing House”, New London (Ct.) Day, Apr. 16).
April 19 — From the incivility frontier. Richard F. Ziegler, writing in the Feb. 7 National Law Journal: “Until recently, the classic example of incivility in litigation was famed Texas lawyer Joe Jamail’s defense of a deposition witness in the 1993 Paramount-QVC Network-Viacom takeover battle. According to the excerpts of the deposition transcript included in an addendum to an opinion by the Delaware Supreme Court, Jamail told the examining lawyer that he could ‘gag a maggot off a meat wagon’ and made other vituperative remarks that the Delaware court labeled ‘extraordinarily rude, uncivil and vulgar.’ . … Mr. Jamail’s ‘maggot’ rhetoric has now been displaced by a new classic in incivility: a pre-suit letter sent by a New York litigator that threatened the prospective defendant with the ‘legal equivalent of a proctology exam’ if the plaintiff’s claim weren’t satisfied without litigation. That wording, plus some other aggressive tactics by the same lawyer, ended up costing the would-be proctologist a $50,000 sanction (now on appeal).” The sanctions were handed down last November by federal judge Denny Chin against litigator Judd Burstein, in a case called Revson v. Cinque & Cinque P.C. However, prospective targets of legal intimidation should not get their hopes up too high: a few years ago the Second Circuit, which includes New York, “sustained as proper a pre-suit letter that sought to encourage settlement by threatening the opposing party with harmful publicity.” (Richard F. Ziegler, “Litigation: The Price of Incivility”, National Law Journal, Feb. 7).
April 19 — Microsoft case: commentators. A gamut of views, ranging from the moderately appalled to the fully appalled:
* Robert Samuelson on the clash between the living thing that is the New Economy and the seemingly robotic lurch of antitrust enforcement (“Puzzles of the New Economy”, Newsweek, April 17);
* Tom Watson, though declaring himself “no cyberlibertarian,” laments that the suit “has permanently created a Federal presence in the development of networked software in the United States. And that means, of course, lots of lawyers getting lots of hourly fees to litigate in an area they clearly don’t understand.” (“Justice Department Saves the Internet, Film at 11”, AtNewYork, April 6 — via Q Queso);
* Michael Kinsley has fun with a New York Times reporter on the question of whether it was shocking for Bill Gates to try to fend off Justice Department assault by — eeeuw! — hiring lobbyists (“The Timesman With a Microchip on His Shoulder”, Slate, April 17).
April 19 — $60,000 battle over $5 t-shirt. In Westerly, Rhode Island, court wrangling has now gone on for two years over whether then-sophomore Robert Parker’s heavy-metal t-shirt (“White Zombie”, number 666 on back) was unnecessarily disruptive and thus in violation of the school dress code. (Michael Mello, “RI ‘Satanic’ T-Shirt Case Continues”, AP/Washington Post, Apr. 10). Update Aug. 29-30: case has settled.
April 18 — Brockovich story, cont’d: the judges’ cruise. Picking up where we left off yesterday with more highlights from Kathleen Sharp’s investigation for Salon:
* Not long after the case settled with its lucrative $133 million lawyers’ fee, the two L.A. lawyers who’d teamed with the Masry/Brockovich firm to handle the PG&E case, Thomas Girardi of Girardi & Keese in Los Angeles, and Walter Lack of Engstrom, Lipscomb & Lack in Century City, “organized a weeklong Mediterranean cruise for 90 people, including 11 public and private judges. The three PG&E arbitrators were among those invited,” reports Sharp. “One judge called it ‘absolutely incredible.’ A luxury yacht floated on azure waters; tuxedoed butlers balanced silver trays of free champagne; young bikini-clad ladies frolicked on the sun-splashed deck, according to retired Judge [William] Schoettler, who was a guest. As another bare-chested judge remarked at the time: ‘This gives decadence a bad name.'”
“The cruise was organized under the banner of Girardi and Lack’s Foundation for the Enrichment of the Law. Girardi told the Los Angeles Times that the cruise included ‘an extensive professional program,'” which would make it allowable under judicial rules, but retired judge Schoettler can’t recall anyone he knew actually attending a lecture. “The cost was about $3,000 per person, about half the normal rate; Girardi told the Times he and Lack had received a discount for chartering the entire Cunard cruise ship. After some confusion, all of the judges on the trip paid their way, save two unrelated to the PG&E case who were invited to lecture.”
* Some of the judges in the arbitration had an unusually friendly relationship with Girardi: one had officiated at his second wedding, Schoettler had flown in his Gulfstream to attend the World Series, and so forth. “‘I became aware that I should absolutely stay away from [arbitration firm] JAMS or its retired judges when it came to any dealing with Tom Girardi,’ said Laurence Janssen, a partner in the Los Angeles office of Washington law firm Steptoe & Johnson. … ‘The common lore imparted to me was that it would be crazy to get in front of any JAMS arbitration with Girardi.'” The outcry over the post-Hinkley-case cruise helped spur a California Supreme Court inquiry into the arbitration system. (Kathleen Sharp, “Erin Brockovich: The Real Story”, Salon, April 14).
Incredibly — given all the above — some in the White House and in the Al Gore campaign are hoping to ride the success of the celluloid “Erin Brockovich” into a chance to seize the initiative on behalf of the wonders of the beneficent tort system and the wickedness of the mean old tort reformers who’d like it to be regulated and supervised more closely. That came across in both a relatively light column by the New York Times‘s Maureen Dowd (“The Erin Factor”, April 5) and a thuddingly heavy one by Salon‘s Joe Conason, whose writings often sum up the theme-of-the-week of the Clinton/Gore attack machine (“Lessons from ‘Erin Brockovich'”, March 28). Given the revelations in Kathleen Sharp’s article — which, if there’s any justice, should be in contention for the next round of journalistic prizes — it now may be time for Gore’s backers to hope that public opinion doesn’t start focusing on the Hinkley case. Also recommended: Dennis Byrne, writing in the Chicago Sun-Times that “as I sat through the movie with a reporter’s skepticism, I was uneasy about how one-sided it was,” and offering a list of “movies you’ll never see come out of Hollywood”, (“A feel-good story with a bad taste”, April 12, link now dead); and Michelle Malkin, “The truth about Erin Brockovich”, syndicated/ Jewish World Review, April 17.
April 18 — Catfight! This store’s not big enough for two tigers. Federal appeals court reinstates Kellogg Co.’s suit against Exxon over the two companies’ use of cartoon tigers, both of which date back to the 1950s. For years Exxon’s “tiger in your tank” was mostly seen at the gas pump, but more recently the petroleum company has moved him indoors to tout food items at its convenience stores, angering the Battle Creek-based cereal company, which uses Tony the Tiger to sell its Sugar Frosted Flakes. (“Kellogg Renews Suit Against Exxon over Tiger”, AP/Washington Post, Apr. 12).
April 18 — Update: trial lawyers’ war on Allstate. Plaintiff’s attorneys score some advances in campaign against big insurer known for lawyer-averse claims practices (see “How To Hammer Allstate”, Dec. 22). A New Haven, Ct. federal judge has refused to dismiss a lawsuit claiming that that company committed fraud by discouraging third parties involved in accidents with its insureds from retaining lawyers. A Seattle judge agreed with trial lawyer arguments that for Allstate to urge such third-party claimants not to hire lawyers amounts to the unauthorized practice of law and is thus illegal. And a Nassau County, N.Y. judge has levied sanctions against the company for insisting on its policyholder’s day in court against a claim where it should in the judge’s view have conceded liability. (Mark Ballard, “Allstate Tactics Under Fire,” National Law Journal, Jan. 31; Thomas Scheffey, “Allstate Suit Gets Nod From Connecticut Court”, Connecticut Law Tribune, Feb. 14; Michael A. Riccardi, “Appeal Battle Over Allstate Sanction Case May Help Tort Plaintiffs”, New York Law Journal, Mar. 22). Update Apr. 25, 2004: insurer prevails in Connecticut federal case.
April 17 — Brockovich story breaks wide open. Salon scoops competition with journalist Kathleen Sharp’s impressive investigation of the real lawsuit that inspired “Erin Brockovich”. In the Hollywood tale, after our spunky heroine vanquishes nasty Pacific Gas & Electric, the residents of Hinkley, Calif. win big. In the real world, many of the Hinkley clients feel they got the royal shaft from the lawyers who represented them, and are now proceeding to sue those lawyers, specifically Brockovich’s firm of Masry & Vititoe, headed by Ed Masry:
* Of the $333 million settlement paid by PG&E, the lawyers kept a handsome 40 percent ($133 million) share, plus another $10 mil to cover expenses, yet were short (the clients say) on detail to back up the latter largish number. Worse, they say Masry, Brockovich & Co. held on to their money for six months after the settlement, a delay that appears highly irregular to the experts Salon checks with, while not paying interest or even returning their phone calls (the lawyers claim the payments did include interest). Some with large awards also got steered toward certain financial planners, among whom was Ed Masry’s son Louis.
* When the payouts eventually came, many clients found the division of spoils mysterious, arbitrary-seeming or worse. Divided among the 650 plaintiffs, the announced $196 million would provide about $300,000 per client. However, an outside lawyer who interviewed 81 of the plaintiffs says he was told they received an average of $152,000, and Salon reports that many long-term residents with presumably documented medical ailments got payments of $50,000 or $60,000. The numbers are in fact secret, which means clients can’t get an accounting of who received what — you’ve gotta protect the privacy of the other plaintiffs, right? Moreover, “there was no mention of the criteria, formula or method by which the money would be divided,” other than a statement that the amounts would be based on clients’ medical records. Yet some residents say their medical records were never solicited. One elderly, ailing resident “blew up at one of the attorneys, who didn’t like his attitude,” according to a fellow townsman, and “got a real bad deal,” allotted in the end only $25,000: “fairly or not, some residents say they saw a pattern in the distribution method. ‘If you were buddies with Ed and Erin, you got a lot of money,’ said [client Carol] Smith. ‘Otherwise, forget it.'”
* Even while the case was pending, many clients (as well as the outside press) found themselves unable to keep tabs on its progress; it was resolved in arbitration, which takes place off the public record. “We had no idea what was going on and weren’t allowed to watch,” said one plaintiff. Yet with help from the plaintiffs’ lawyers, Universal Studios managed to obtain a copy of the trial transcript — more than many of the actual plaintiffs in the case have yet managed to do. When journalist Sharp attempted to interview the lawyers on the Brockovich team, the resulting conversations were “short and explosive and terminated abruptly by the lawyers.” And when an outside lawyer took an interest in the disgruntled clients’ case, Masry and fellow lawyers at once seized the offensive, suing him for allegedly slandering them and interfering with their business relationship with the clients; this slander suit was filed, then dropped two weeks later, then reinstated, then dropped again.
* What about the science? (see April 14 and March 30 commentaries) Fumes from the application of chromium-6 in industrial settings are indeed dangerous to workers who inhale them, but the crux of the Hinkley controversy was what kind of health risk the substance poses as a trace water pollutant. Sharp quotes toxicologist Sharon Wilbur at the U.S. Department of Health and Human Services, who flatly contradicts Brockovich on whether the contaminant could have caused the various health problems sued over.
* Sharp also unearths allegations leveled by the Brockovich-side lawyers and by others that the first set of lawyers PG&E had used on the case had engaged in potentially serious misconduct, including privacy invasion by hired gumshoes. It’s hard to know how much weight to give these allegations, but if credited even in part they might suggest a motive for the utility to accept a hasty settlement of the case on unfavorable terms.
Some of Sharp’s sources evidently have a bit of an ax to grind against arbitration as an institution, but the article is still a triumph of sheer reportorial legwork, too rich in detail to summarize in one day. Tomorrow: the judges’ posh Mediterranean cruise, mounting press interest in the case, and the politics of it all. (Kathleen Sharp, “Erin Brockovich: The Real Story”, Salon, April 14).
April 17 — Annals of zero tolerance: kindergartners’ “bang, you’re dead”. Four kindergartners playing “cops and robbers” at Wilson School in Sayreville, New Jersey were given three-day suspensions after they pretended their fingers were guns and played at shooting each other. “This is a no tolerance policy. We’re very firm on weapons and threats,” said district superintendent William L. Bauer. “Given the climate of our society, we cannot take any of these statements in a light manner.” (“N.J. kindergartners suspended for threats during playground ‘cops and robbers’ “, AP/Court TV, April 6; see also Nov. 20 commentary).
April 17 — Another sampling of visitors. The hundreds of diverse websites that link to us include the Wyoming Libertarian Party (“I’d say this country is overlawyered, but some trial lawyer will probably sue me for saying it”), Arrosage Lemay, a pest control and lawn maintenance enterprise in Notre-Dame- de- la-Salette, Québec (catch the antennae-wiggling animations), and Ridgefield Focus, a community site serving a town of which we’re very fond, Ridgefield, Ct.
April 14-16 — Great moments in defamation law. At a sentencing hearing for James Hermann, who’d pled guilty to armed robbery, defense lawyer Robin Shellow argued that despite her client’s extensive criminal record (six previous adult convictions) he deserved to be treated with some leniency because he’d been struggling with a heroin problem. But this last statement of hers was mistaken: though Mr. Hermann admitted in a probation report that he was high on crack cocaine and Valium when he’d used a shotgun to rob a Milwaukee custard store owner, his drug use did not include heroin. Hermann proceeded to sue her for defamation, and although the judge in the criminal case said her slip hadn’t affected the length of the sentence either way, Hermann proceeded to line up an expert witness willing to testify that he’d “suffered psychological harm as the result of being called a heroin addict instead of a cocaine addict”, according to Shellow’s lawyer, Randal Arnold. Psychologist Paul M. Smerz told the court that Hermann had suffered “lessened sense of self-confidence, self-esteem and overall self-image” and even symptoms of post-traumatic stress disorder as a result of his attorney’s groundless comment. The case dragged on for two years and finally settled this spring as it was approaching trial when Shellow agreed to refund $500 of her original legal fee to Hermann. (Cary Spivak, “‘Hey, I use coke, not H’, robber says in suit v. his lawyer”, National Law Journal, Mar. 27).
April 14-16 — “Erin Brockovich”: plume of controversy. Julia Roberts’s screen appeal is undeniable, but how good’s the science? The New York Times‘ Gina Kolata joins the fray (title says it all: “A Hit Movie Is Rated ‘F’ in Science”, April 11), while Brockovich herself, who’s currently traversing the country helping organize toxic tort suits, spars with critic Michael Fumento in the letters column of the Wall Street Journal (letters exchange reprinted at Fumento website; Raphael Lewis, “Opening in a toxics case near you, Erin Brokovich” [sic], Boston Globe, Apr. 1; Edward Lewine, “Writer’s Slam Angers Real Erin Brockovich”, New York Daily News, Apr. 2; this site’s March 30 commentary).
April 14-16 — “Saints, sinners and the Isuzu Trooper”. Column by Washington Post‘s Warren Brown on Consumer Reports/Isuzu Trooper dustup (see April 10) finds plenty to criticize on both sides. “If anything is to be learned from the Isuzu-CU conflict, it is, perhaps, that both David and Goliath deserve equally aggressive scrutiny because both are equally capable of screwing up.” (“Saints, Sinners and the Isuzu Trooper”, April 13 — online chat with Brown scheduled for Monday 11 a.m. EST at Post site).
April 14-16 — Police resent political gun-buying influence. Part of the developing plan for strong-arming independent gunmakers into a Smith & Wesson-type settlement is to get cities and counties to redirect police-gun purchases toward favored manufacturers such as S&W and any companies that sign similar agreements. But many on police forces see it as playing politics with their lives to select guns based on anything other than their optimality for police use, which requires ease of control and use, speed, accuracy and reliability under extreme conditions. (Smith & Wesson has not been a popular brand in police use.) “Adherence to a particular political philosophy” shouldn’t play a part in gun purchases, Gilbert G. Gallegos, national president of the Fraternal Order of Police, told the Los Angeles Times. A few jurisdictions like Atlanta, Berkeley and San Mateo County, Calif. have signed onto the program, but the L.A. County Sheriff’s Department is planning to stick with its 9-mm Berettas. “Politics aren’t going to enter into how we choose our firearms,” said Capt. Garry Leonard of the department. “When you think of what we do for a living, we just can’t take chances.”
Glock general counsel Paul Jannuzzo said that, in a recent phone call, Housing Secretary Cuomo asked about his company’s sales to police and “made it fairly clear” that those sales would be at risk if the company didn’t play ball. “I think the expression he used was, ‘I have a lot of push with these Democratic mayors,'” said Jannuzzo. “There was no doubt in my mind that I’d just been threatened with economic extortion”. Told about the charge, Secretary Cuomo, ever the model of grace in controversy, retorted: “It’s an interesting response from the subject of an antitrust investigation,” referring to the trade-restraint probe recently launched against the gun industry for allegedly shunning S & W (see March 31). (Richard Simon and Eric Lichtblau, “Police Feel Pressure to Choose the ‘Code'”, Los Angeles Times, Apr. 9).
April 13 — Judge dismisses suit blaming entertainment biz for school shootings. U.S. District Judge Edward Johnstone has dismissed an action on behalf of school shooting victims in Paducah, Ky. against 25 enterprises whose movies, videogames and Internet sites had allegedly incited teenage gunman Michael Carneal to go on his rampage (“Federal judge dismisses lawsuit against movie, video game makers”, AP/Freedom Forum, April 7; “Suit blaming media for Kentucky killings dismissed”, CNN/Reuters, April 7; see July 22 and Nov. 2 commentaries). Plaintiffs vowed to appeal the ruling, which came shortly after a Senate hearing at which conservative Sen. Sam Brownback (R-Kansas) lent a sympathetic ear to the lead plaintiff’s charges against the videogame industry (“Witness tells Senate panel: Video games taught teen killer how to shoot”, AP/Freedom Forum, March 22).
Other litigation continues to move forward around the country seeking to blame the media and game makers for school violence, including the Columbine High School massacre in Colorado. Lt. Col. David Grossman, a former Army psychologist signed as an expert witness by the plaintiffs in the Carneal case, has been much in the press lately denouncing such games as Doom and Quake (“The Games Kids Play”, John Stossel/ABC News 20/20, Mar. 22). And Vermont state senator Tom Bahre (R-Addison) has introduced legislation in that state which would hold makers of graphically violent movies and other media liable for the costs of acts of real-life violence that their products are deemed to have incited. An AP report says Bahre’s bill would “place the burden of proof on those producers to show that their depictions of violence did not cause an actual event.” (“Vermont lawmaker wants to hold media responsible for violence”, AP/Freedom Forum, Dec. 29).
April 13 — Bill Gates and the Nasdaq: why didn’t the Munchkins sing? “When the wicked witch is dead, you expect the Munchkins to break out in song. But that was not the reaction in the technology sector this week, after a federal judge found Microsoft Corp. guilty of behaving like a bully.” Nasdaq, composed heavily of tech firms that Microsoft is supposed to have victimized, fell off a cliff. Paradoxical? “Economists Thomas Hazlett of the American Enterprise Institute and George Bittlingmayer of the University of California at Davis recently published a study in the Journal of Financial Economics documenting that whenever the government’s antitrust suit scores a victory, an index of non-Microsoft computer stocks falls — and when Microsoft wins a round, computer stocks rise.” (Steve Chapman, “The Real Cost of the Microsoft Verdict”, Chicago Tribune, April 6).
April 13 — “Congress passes asset forfeiture bill”. Long awaited reforms will make it harder for the government to seize assets first and ask questions later. “The legislation would shift the burden of proof in asset forfeiture cases from the property owner to the government. … It allows federal judges to release property to the owner if continued government possession causes substantial hardship to the owner, extends the time a property owner has to challenge a seizure in court and ends the requirement that a person seeking to recover property post a bond with the court worth 10 percent of the property value.” (AP) To placate prosecutors, however, the bill also gives law enforcement officials a number of new powers. (Jim Abrams, “Congress passes asset forfeiture bill”, AP/Topeka Capital-Journal, April 12; Stephen Labaton, “Congress Raises Burden of Proof on Asset Seizures”, New York Times, April 12).
April 13 — Regulation through litigation: opinion pieces. The topic’s starting to arouse significant attention among the commentariat, and not a moment too soon:
* We think he’s joking dept.: Univ. of Colorado law prof Paul Campos (Jurismania) foresees a gigantic class-action suit against “Big Auto” (“Where are next brave lawyers?”, Rocky Mountain News (Denver), April 11).
* “First, tobacco. Then, guns. Now, Microsoft. Does anyone seriously believe the class-action legal industry will stop there?” asks Wall Street Journal editorialist John Fund, who sees reformist sentiment rising: “In North Dakota and Texas, new ‘sunshine’ laws give the legislature oversight of government contracts with outside lawyers.” (“Litigation gold rush”, MS/NBC, April 4).
* Today’s less-than-spontaneous agitations against each newly designated Industry-To-Hate remind the Kansas City Star‘s E. Thomas McClanahan of China’s old “mass political campaigns” in which the populace was whipped up to support a purge of the “Four Bads” or of “capitalist roaders”. Quotes this site’s editor, too (“Bypassing the checks and balances”, Apr. 10 (click “columns”, then scroll list))
* “None dare call it extortion” is the Las Vegas Review-Journal‘s take (editorial, April 7).
April 12 — Gore amid friendly crowd (again). Bill Clinton and Al Gore have been racing around the country to attend a seemingly unending series of fund-raisers thrown by such prominent personal-injury lawyers as Dallas’s Fred Baron (see Feb. 14) and Cincinnati’s Stanley Chesley (see Mar. 30). Last Thursday it was the turn of Palm Beach, Fla. tobacco-fee tycoon Robert Montgomery (see Aug. 21-22), for a $10,000-a-plate dinner graced by the Veep.
The Washington Post‘s Ceci Connolly writes that at yet another recent lawyer-hosted fund-raiser — this one at the home of Houston’s Denman Heard — Democratic National Committee Chairman Ed Rendell said, with Gore looking on, “we are proud as a party to have the support of the trial lawyers. It is nothing we apologize for”. “Gore summed up the differences this way: ‘We fight for the working people, for those who don’t have the resources,” he said. Republicans ‘draw from the wealthiest, most powerful and well-heeled.'”
To be sure, Mr. Montgomery, who hosted last Thursday’s Gore event, could give most GOPers a lesson or two about what it means to be powerful and well-heeled: together with some colleagues he pulled off the Florida tobacco caper, representing the state government and nabbing what was at the time the biggest legal fee in history, $3.4 billion, his own share amounting (per George magazine’s estimate) to some $678 million. Montgomery is also a longtime donor to political candidates ranging from the Kennedy family to Hillary Rodham Clinton. Maybe it’s not so surprising after all that the Democratic National Committee raised more money in the first quarter than its Republican counterpart. (Ceci Connolly, “Democrats Have No Argument with Trial Lawyers”, Washington Post, April 9; Jonathan Salant, “Democrats raise more money than Republicans”, AP/CNN, April 7).
A proper account of the Florida tobacco affair for a national readership remains to be written. For an introduction, check out the following 1998 coverage by Lucy Morgan in the St. Petersburg Times: “Tobacco trial lawyers say they had to hire [Governor Lawton] Chiles’ friends”, March 25, 1998; “Tobacco team lawyer is called to account”, March 31, 1998 (“Did lawyers hired by Florida to fight the tobacco industry cough up more than $100,000 for the Clinton/Gore campaign in hopes of currying favor with the administration? And were those campaign contributions illegally disguised as legal expenses — and actually paid by the tobacco industry?” — with eyebrow-raising details about a Fort Lauderdale meeting between the tobacco trial team and Vice President Gore on Oct. 15, 1996, shortly before the 1996 election); as well as “Tobacco and torts” (editorial by the paper), Dec. 19, 1998 (calling the eventual arbitration award to lawyers “breathtakingly excessive … It’s almost disgusting to think of such riches going to a few people who gave relatively little time and expertise to ‘earn’ them. … receiving billions of dollars in fees for a case that never went to trial is utterly unconscionable. … [the lawyers have put] a face on greed”.) (DURABLE LINK)
April 12 — Triumph of plastic foliage. New York Times home and garden section advises that artificial plants are making inroads in both interior commercial decor and landscaping; unlike the live kind, “they don’t house pests or provoke allergic reactions (and subsequent lawsuits)”. (William L. Hamilton, “The Flowers That Bloom in Spring, Ha Ha”, New York Times, April 6).
April 12 — Cops shoot civilian; city blames maker of victim’s gun. In a suit filed last week, the city of Riverside, Calif. says gunmaker Lorcin Engineering should bear legal responsibility for the shooting by Riverside police of 19-year-old Tyisha Miller of Rubidoux, because it sold the weapon she had on her lap at the time she was shot in a locked, idling car. Officers from the force were later fired for the tactics they used in the shooting, which led to a wrongful-death lawsuit by Miller’s survivors. The city is now seeking to dodge that suit by impleading Lorcin on the theory that had it provided better user training Miller might have known not to keep a gun on her person in a way that approaching officers might interpret as threatening to them, though her gun was later found to be inoperable. Lorcin shuttered its plant in nearby Mira Loma and declared bankruptcy last year, but an attorney for the city suggests it still has money. “Every single claim against Lorcin was dismissed, but at a very expensive cost of $100,000 here, $100,000 there” in legal fees, said owner James Waldorf. (Lisa O’Neill Hill and John Welch, Riverside Press-Enterprise, April 7) (discuss at Press-Enterprise site).
April 12 — Endorsed again. “oh man, this is great. overlawyered.com. check the left side for ‘personal responsibility’ …” — thus one of the April 10 entries on Array, a weblog specializing in art and applied digital technology, but with a wide miscellany of other topics in there too.
April 11 — Stuart Taylor, Jr., on Smith & Wesson deal. His new column on law-stretching gun and tobacco suits is must reading even aside from the handsome plug it gives this website (see below). “One thing I am sure of is that the Framers of the Constitution created Congress — and assigned to it ‘all legislative powers herein granted’ — to set policy for the nation on such complex questions of social engineering [as gun control]. They also made it hard to enact legislation unless backed by a fairly broad national consensus. That’s a far cry from what’s going on now….
“[T]he gun litigation represents a deeply disturbing way of making public policy. It was started by private lawyers and municipalities with big financial interests at stake. The courts have largely been bystanders as the Clinton Administration and its allies have sought to bludgeon gunmakers into settling before trial.” (Stuart Taylor Jr., “Guns and Tobacco: Government by Litigation”, National Journal, March 27; NJ yanks these free columns after offering them briefly as a teaser, so catch this one now.)
P.S. Okay, and now about that plug: “For a fuller taste of these and other peculiar workings of our legal system, with copious links to news reports, check out an amusingly depressing Web site called Overlawyered.com, created and edited by Walter K. Olson of the conservative-libertarian Manhattan Institute,” writes Taylor. “Amusingly depressing” — an ideal slogan for our banner ads (if we ever get around to devising them; someone wanna help volunteer?).
April 11 — Oops: D.A.’s and judge’s fwding of sex pic deemed “unfortunate event”. Dateline Las Vegas: “A pornographic photograph sent by e-mail to dozens of Clark County employees originated from a deputy district attorney’s computer. The e-mail was then forwarded to a senior judge who passed it on to other county workers.” Apparently the sexually explicit photo was meant to reach only one or two recipients, but was inadvertently blind-cc’d to a longer list. County manager Dale Askew said those involved likely would be suspended without pay. “Needless to say employees were not happy receiving it because it came across their computer unsolicited,” said county spokesman Doug Bradford, who called the episode “an unfortunate event.” How lucky for all concerned that they weren’t at a big private firm, where skittishness over harassment liability might have gotten the senders fired. (Adrienne Packer, “Obscene e-mail traced to deputy DA”, Las Vegas Sun, Feb. 9). (DURABLE LINK)
April 11 — Krugman on MS: his “blood runs cold”. “I don’t know anyone outside Seattle who is really pro-Microsoft. But a lot of us are, at least mildly, anti-anti-Microsoft. That is, we worry that the crusade against Bill Gates sets a bad, even dangerous precedent. …
“The anti-anti-Microsoft case does not deny that there is some truth to that story [that Redmond’s market dominance and hard-guy tactics caused a climate of fear among its competitors], but asserts that taking punitive action will be the worse of two evils because it will create a different, and worse, climate of fear — fear that success itself will be punished. Today Microsoft, tomorrow Intel and eventually (as soon as somebody figures out what it does) Cisco.”
“… [W]hen I hear that a coalition of states is demanding damages from Microsoft, as if Windows caused lung cancer; well, my blood runs cold. I know that there is an intellectually respectable case against Microsoft, but I’ve got a bad feeling about where we are going.” (Paul Krugman, “Rights of Bill”, New York Times, April 9).
April 11 — Chat into the microphone, please. Securities and Exchange Commission announces plans to acquire automated software to trawl websites, Usenet and Yahoo/AOL-type bulletin boards searching for phrases like “get rich quick” and “free stock” which might signal illicit securities promotion. The results, including email addresses and other identifying information about posters, will be copied into a giant database and indexed for the convenience of SEC investigators whose job is to file civil charges against persons suspected of stock-jobbing. One company invited to submit bids on the system, the big accounting firm of Pricewaterhouse Coopers LLP, has already bowed out of consideration, saying it had “serious concerns about the implications for the privacy of individuals”. The proposal “is equivalent to, in my opinion, wiretapping … the equivalent of planting a bug,” said Larry Ponemon, a partner at the firm in charge of privacy issues. Members of Congress have begun to express concern: “Engaging in such a wide level of monitoring will have a chilling effect on free speech online,” Rep. Bob Barr (R-Ga.) wrote to SEC Chairman Arthur Levitt. “While I understand the need to prevent securities fraud, federal agents should not be allowed to sift through the conversations of millions of innocent parties in order to do so.”
Levitt says there’s little difference in principle betwen current practice — in which flesh-and-blood SEC attorneys laboriously traverse the Web looking individually for possible indicia of fraud — and the new proposal. The commission also says it will keep the data confidential and throw out information that does not establish wrongdoing. Other federal agencies are eager to follow the SEC’s lead, such as the Commodity Futures Trading Commission, which has begun talking to vendors: “For us it’s a very exciting prospect,” says acting CFTC director of enforcement Phyllis J. Cela. (Michael Moss, “SEC’s Plan to Snoop for Crime on Web Spraks a Debate Over Privacy”, Wall Street Journal/ZDNet, March 28; Marcy Gordon, “SEC Plans Web Surveillance System”, AP/Excite, March 29; Michelle Finley, “SEC Plan: Free Speech Violation?”, Wired News, March 29; “House panel questions automated surveillance by SEC”, Reuters/Excite, April 4). (DURABLE LINK)
April 11 — Attention librarians. Starting immediately, we’ll be dividing each new month’s archives into three, rather than two, sections; that way readers with low bandwidth won’t have to wait quite so long for those pages to load.
March 31-April 2 — Punished for resistance. Gun-suit organizers were hoping Smith & Wesson’s capitulation would bring about a race among other firearms makers to settle; instead, manufacturers, dealers and buyers are racing to dissociate themselves from the hapless company, formerly the market leader. Now — in a move that counts as heavy-handed even by the standards of activist attorneys general — Connecticut AG Richard Blumenthal and New York’s Eliot Spitzer are readying antitrust action against companies in the gun industry for the offense of shunning S&W. Connecticut reportedly issued subpoenas yesterday; among possible grievances bruited in the New York Times‘ account are that some organizers of shooting matches have told S&W that it is no longer welcome, that dealers are dropping its wares, and that other gun companies are unwilling to go on coordinating their legal defense efforts with S&W, which means it will have to find a new law firm. Blumenthal’s and Spitzer’s message to those in the gun business could hardly be clearer: better go quietly, because we’ll crush you if you resist in any organized way. (Fox Butterfield and Raymond Hernandez, “Gun Maker’s Accord on Curbs Brings Industry Pressure”, New York Times, March 30; Peter Slevin and Sharon Walsh, “Conn. Subpoenas Firms in Gun Antitrust Probe”, Washington Post, March 31).
March 31-April 2 — Terminix vs. consumer critic’s website. Pest control company Terminix retreats from courtroom efforts to swat dissatisfied consumer Carla Virga, who put up a website to publicize her unhappiness with its services. After its defamation suit was dismissed, the company tried again on the theory that Ms. Virga was infringing its rights by using the word Terminix itself in “metatags” directed at search engine listings. This succeeded in infuriating many in the Web community, and now the company has backed off that second action as well. Other companies that have gone to court against angry-consumer websites include Bally Total Fitness, Circuit City, and U-Haul. (Craig Bicknell, “Site No Longer Bugs Terminix”, Wired News, Mar. 11; Robyn Blumner, “Welcome to the world of free-speech exterminators”, St. Petersburg Times, Mar. 19).
March 31-April 2 — Employer-based health coverage in retreat? Report in the news-side Wall Street Journal last month suggests more big employers are beginning to “look for an exit strategy from the health-benefits business”, especially since “it’s possible that Congress or a court ruling will expose employers to legal liability in malpractice cases“. Under “defined contribution” models pioneered at Xerox Corp. and elsewhere, employees are given lump-sum health vouchers and told to find the plan that’s best for them. Sanford C. Bernstein analyst Kenneth Abramowitz sees the benefits of giving workers choice, but points out the danger that employees will be cut loose with a “Yellow Pages” outcome: “Here’s $5,000 and the Yellow Pages. You figure it out.” “Adding new liability for companies could prompt some to scuttle their health-benefits programs and send employees into the market to fend for themselves. Says Margaret O’Kane, head of a managed-care accrediting organization called the National Committee for Quality Assurance: ‘If employers find themselves in the path of the trial lawyers, I think you can expect a massive bailout'”. (Ron Winslow and Carol Gentry, “Health-Benefits Trend: Give Workers Money, Let Them Buy a Plan”, Wall Street Journal, Feb. 8, fee-based library).
March 31-April 2 — Welcome Milwaukee Journal Sentinel readers. Overlawyered.com was a featured website earlier this month in Bob Schwabach’s “On Computers” column, which runs in Wisconsin’s leading paper and many others nationwide (March 9).
March 30 — Hollywood special: “Erin Brockovich”. The words “babelicious” and “toxic tort” had probably never been used in the same sentence before, but Julia Roberts’ new flick is finally showing that with the right costume design a litigation movie can ace the box office. Now the Hudson Institute’s Mike Fumento, in an op-ed in Tuesday’s Wall Street Journal expanded considerably into a piece in yesterday’s National Post (Canada), challenges the premise, taken for granted among most reviewers of the film, that Pacific Gas & Electric was guilty as charged of poisoning the populace of a small California desert town with chromium-6 in the water. Fumento says the levels of contamination found were orders of magnitude lower than those needed to induce health effects in experimental animals; that the lawyers sought to blame on the water a wide assortment of ailments among local residents that science has not linked to chromium exposure; and that health studies found that the plant’s own workers, who were likely exposed to at least as much pollution as neighbors, had a life expectancy comfortably exceeding the California average. (Michael Fumento, “The dark side of Erin Brockovich”, National Post, March 29; Michael Fumento, “‘Erin Brockovich’, exposed”, Wall Street Journal, March 28; official film site; Mr. Showbiz review; Christine Hanley, “Brockovich’s Work Is Just Beginning”, AP/ABC News, March 27).
March 30 — Hollywood special: “The Insider”. Though nominated for numerous Oscars, last season’s portentous litigation epic The Insider got shut out in the actual naming of awards. Were Academy voters bothered by the film’s unacknowledged fictionalizations, or did they just share the views of Adam Heimlich of the New York Press, who last week called the film “preposterously overheated … The title character’s big revelation in this interminable movie — which treats the looting of tobacco companies by trial lawyers with enough gravitas to make Judgment at Nuremberg feel like Oklahoma! by comparison — is that ‘cigarettes are nothing but a delivery system for nicotine.’ … God forbid someone in Hollywood or on the Upper West Side speaks out against the selective demonization, for purposes of state and oligarchic power, of the drugs they don’t happen to use. Philip Morris should fight back with a drama exposing that Starbucks lattes are nothing but a delivery system for caffeine and martinis are nothing but a delivery system for alcohol. If Insider wins Best Picture … it’ll prove that Hollywood is nothing but a delivery system for the propagandistic justification of top-down class warfare.” But it didn’t win. (Adam Heimlich, “Heimytown”, New York Press, Mar. 22).
March 30 — Al Gore among friendly crowd. Last Thursday Vice President Gore attended a $500,000 luncheon fund-raiser at the Cincinnati home of Stanley Chesley, sometimes nicknamed the “Master of Disaster”, one of the country’s most prominent plaintiff’s trial lawyers. The Cincinnati Post says that Chesley, known for air-crash, tobacco and Microsoft suits, “has been a dependable fund-raiser for the vice president and President Clinton.” (Bill Straub, “Gore next to visit Cincinnati to raise funds”, Cincinnati Post, March 22; Sharon Moloney, “Gore bashes Bush tax plan”, Cincinnati Post, March 24); Christopher Palmeri and James Samuelson, “The Golden Leaf”, Forbes, July 7, 1997). For recent fund-raising by Bill Clinton among trial lawyers, see our Feb. 14 commentary.
Forbes Online columnist James Freeman recently took a hard look at Gore’s in-depth support from trial lawyers (“Who’s funding Gore?”, Feb. 28). Gore’s financial backers over the years have included most of the biggest names in the litigation business, including Wayne Reaud (asbestos, Toshiba laptops), John O’Quinn (breast implants, many others), Joe Rice (asbestos, tobacco), Bill Lerach (shareholder lawsuits), etc. Gore hosted Lerach at the White House for coffee in February 1995, Freeman writes, and Chesley was there for coffee that same day.
March 29 — Litigator’s bliss: finding opponent’s disgruntled former employee. “Assume the legal lotus position and imagine a happy place. What greater nirvana could there be than [finding] the disgruntled former employee of an opposing party? Gruntled or not, a high priority of any good discovery plan should be to identify and interview former employees as quickly as possible, before the other side can neutralize or co-opt them.” (Jerold S. Solovy and Robert L. Byman, “Discovery: Ex parte, Brutus?” (practitioners’ advice column), National Law Journal, March 27, not online).
March 29 — Why rush that software project, anyway? California adds to its reputation as a high-hassle state for tech employers with a law taking effect this year, backed by unions and plaintiff’s employment lawyers, requiring that many computer consultants be paid overtime rates if they put in more than eight hours in a day. Many such consultants bill at rates that exceed $50, $100 or even $200 an hour, before the overtime premium is added in. One Bay Area staffing exec says most of his employer clients are unwilling to trigger the overtime entitlement and are instead sending home specialists after eight hours who would previously have worked longer (Margaret Steen, “New overtime law spurs change in tech firms”, San Jose Mercury News, March 22, link now dead; “Hi, OT Law; Bye, Tech Boom?”, Reuters/Wired News, March 2; Margaret Steen, “New law means overtime pay for computer consultants”, San Jose Mercury News, Feb. 29; Kirby C. Wilcox, Leslie L. Abbott and Caroline A. Zuk, “The 8-Hour Day Returns”, CalLaw, Jan. 24).
March 29 — The bold cosmetologists of law enforcement. The New York Times took note this Sunday of efforts in Nevada and Connecticut to enlist beauty-parlor personnel in the task of identifying possible victims of domestic violence for referral to battered women’s shelters and other social service agencies (see our March 16 commentary). Its report adds a remarkable new detail regarding the sorts of indicators that Nevada cosmetologists are being officially encouraged to watch for as signs of household violence (being licensed by the state, they have reason to listen with care to what’s expected of them). “Torn-out hair or a bruised eye may signal abuse, but more subtle warning signs may come out in conversation. One Nevada hairdresser, [state official Veronica] Boyd-Frenkel said, told of a client who said: ‘My husband doesn’t want me to see my friend anymore. He says she is putting bad ideas in my head.’
“‘Emotional abuse, intimidation, control, jealousy, overpossessiveness and constant monitoring,’ she said, can be as sure signs of domestic violence as physical injuries.” Does Ms. Boyd-Frenkel, who holds the title of “domestic violence ombudsman” for the attorney general of Nevada, really deem it “emotional abuse” and potential domestic violence when a husband seeks to warn a wife (or vice versa) away from a friend who’s considered a bad influence? Is such spousal behavior really to trigger the notice of the official social-service apparatus, and its new deputies in the hair and nail salons of Nevada? (Jeff Stryker, “Those Who Stand and Coif Might Also Protect”, New York Times, March 26).
March 29 — Update: advice to drop medication unavailing. As reported earlier, subway-push defendant Andrew Goldstein went off his antipsychotic medication before his recent murder trial on advice of his lawyers, in order to demonstrate to the jury how deranged he was (see Feb. 26-27 and March 2 commentaries). Whatever the ethical status of this tactic, it was apparently unavailing in practice: a New York City jury convicted Goldstein of murder last week. He will probably serve his sentence in a state prison outfitted to give him psychiatric care. (Samuel Maull, “Man Convicted in Subway Shove Case”, AP/Excite, Mar. 22).
March 28 — $65 million Texas verdict: driver at twice the legal blood limit. “A Galveston, Texas, jury has awarded $65 million to the parents and estate of a woman who drowned after her car plunged off a boat ramp and she couldn’t disengage her seat belt.
“The jury found defendants Honda of America Manufacturing Co. Inc. and Honda R & D Co. Ltd. 75 percent responsible for the death of Karen Norman — even though after her death, Norman’s blood-alcohol level measured at nearly twice the Texas legal limit. …
“After the accident, [Honda attorney Brad] Safon noted, Norman’s blood-alcohol level was measured at 0.17. The Texas drunk driving limit at the time of the accident was 0.10; it is now 0.08.” Plaintiff’s lawyers said the salt water in which Norman drowned might have thrown off the blood level reading. (Margaret Cronin Fisk, “Fatal Grip of Seat Belt Results in $65M Verdict”, National Law Journal, Mar. 27)(& update Oct. 13, 2003: appeals court throws out award, which trial judge has previously reduced to $43 million).
March 28 — Call me a fraud, will you? Why, I’ll…I’ll hire you! Last year Big Five accountants Ernst & Young paid $185 million to settle a bankruptcy trustee’s charges that it had mishandled the affairs of the now-defunct Merry-Go-Round apparel chain. Now Ernst has sued its former law firm, D.C.-based Swidler Berlin Shereff Friedman, which it says should share the blame. And to prosecute the new suit Ernst has hired none other than the law firm that sued it in the first round, Snyder, Weiner, Weltchek & Vogelstein of Pikesville, Md. “Swidler noted that Snyder Weiner in the earlier suit had accused Ernst of fraud, and now Snyder Weiner in ‘this complaint asserts “E&Y’s innocence of the fraud”‘”. An Ernst executive shrugs off criticism: “Who knows about the case more than the firm that argued the other side?” (Elizabeth MacDonald, “Ernst & Young Sues Law Firm Over Settlement”, Wall Street Journal, March 14 (online subscribers only); James V. Grimaldi, “Accounting Firm Sues Lawyers”, Washington Post, March 14).
March 28 — Annals of zero tolerance: don’t play James Bond. A fifth-grade “model student” at Sutton Elementary School in Tecumseh, Michigan faces expulsion for up to a half year for bringing a plastic toy gun to school because he wanted to “play James Bond”. “You could see it was plastic,” said school superintendent Rich Fauble. “If you looked at it, you could tell it wasn’t a gun.” “I just wanted to play with it at recess,” said the boy, in Fauble’s account. “I didn’t want to hurt anybody. I play with it at home.” Sutton principal Debra Langmeyer said the board’s recommendation of expulsion “might seem extreme” but is intended to “send a message” about guns. (“Toy gun may cause student’s expulsion”, Toledo Blade, Mar. 16).
March 28 — From the labor arbitration front. The Connecticut Supreme Court, over dissents from two of its members, has upheld an arbitrator’s order that David Warren be reinstated to his municipal job in the town of Groton, from which he was dismissed in 1997 after pleading no contest to charges of larceny. Warren was accused of stealing money from the town by selling dumping permits and pocketing the proceeds himself, but the court saw no reason to disturb an arbitrator’s reasoning that his no contest plea might have reflected a wish to avoid the cost and inconvenience of trial, rather than actual guilt. (“‘No-contest’ not guilty, Supreme Court says”, New Haven Register, March 21). And the U.S. Supreme Court has agreed to review an arbitrator’s order that a West Virginia mining company rehire a heavy machinery operator fired after he twice tested positive for marijuana use. The Fourth Circuit upheld the reinstatement, noting that courts “overwhelmingly” defer to the results of arbitration in the unionized workplace. (AP/FindLaw, “Supreme Court to clarify when lower courts can overrule arbitrators”, Mar. 20; Eastern Associated Coal Corp. vs. United Mine Workers, 99-1038).
March 28 — Another visitor record set. Last week was the busiest yet for visitors since Overlawyered.com was launched nine months ago … thanks for your support!
March 27 — Welcome Arts & Letters Daily readers. The best weblog in the world for coverage of essays and history, biography and belles-lettres, is put out for a worldwide audience by philosophy professor Denis Dutton of the University of Christchurch in New Zealand. We get a featured link today (see right-hand column after link to Sullivan piece, for which itself see below).
March 27 — Another S&W thing. “We want to do a Smith & Wesson-like thing with DoubleClick,” Michigan attorney general Jennifer Granholm said Thursday, referring to restrictions on Web data collection that she and attorneys general from New York, Connecticut, and Vermont have been negotiating with the biggest online ad-placement company. We suppose this means that she and her colleagues want to invent far-fetched legal theories to attack business practices that have long been regarded as lawful; file a great flurry of suits in multiple courts so as to overwhelm the designated opponent; use the threat of bankrupting legal expense to muscle it into submission with no need to reach a decision on the merits; and instill fear into other businesses that the same thing could happen to them unless they cooperate with the dictates of ambitious AGs. After all, that’s what was done to S&W. (“AGs Eye Privacy”, Reuters/Wired News, March 23; “DoubleClick in settlement discussions”, Bloomberg News/CNet, March 23).
March 27 — Philadelphia: feminist groups to be consulted on whether to classify incidents as rape. As several high-profile cases in recent years demonstrate, authorities sometimes charge men with rape or sexual abuse in cases where there’s conflicting or ambiguous evidence as to whether there was nonconsensual sexual contact (see, for example, the case of Columbia University grad student Oliver Jovanovic, whose conviction was overturned by a New York appeals court in December). Now Philadelphia police commissioner John Timoney has announced that “he will let women’s organizations help police decide when to believe sexual-assault complaints and how to classify them.” Barbara DiTullio, who heads the Pennsylvania chapter of the National Organization for Women, called the plan “wonderful” and said it could become a model for police departments across the country. “We’re putting together a committee of women . . . and [will] actually, quite literally, let this women’s group be the final say on our classification [of cases]” said Timoney in an interview, though the women’s groups themselves expressed doubt as to whether their say would be final. (Mark Fazlollah, Craig McCoy, and Robert Moran, “Timoney to allow sex-case oversight”, Philadelphia Inquirer, Mar. 21) (via Freedom News).
March 27 — Microsoft Windows downgrade. Be prepared for the Justice Department’s anticipated “remedies” in Reno v. Gates by visiting this parody site (Bob Rivers, KISW, Seattle).
March 27 — Social engineering by lawsuit. Yale law professor Peter Schuck “doubts [that Smith & Wesson] would have lost a court case,” according to this New York Times “Week in Review” piece, which also quotes the editor of this website concerning the evils of litigation as an end run around democratic process (Barry Meier, “Bringing Lawsuits to Do What Congress Won’t”, New York Times, March 26). Cato Institute fellow Doug Bandow wonders why undemocratic lawmaking-by-lawsuit hasn’t become a bigger election issue: “Politics is a bad way to make policy. Litigation is worse.” (“Litigative vs. Legislative Democracy”, Cato Daily Commentary, March 20). And Andrew Sullivan warns Britons that unless they watch out, their country’s trend toward “empowerment of lawyers” will lead them to the state of “hyper-litigation” typified by the U.S. (“A brief warning: soon lawyers will have Britain by the throat”, Sunday Times (London), March 26).
Also: we’ve now put online our editor’s op-ed from last Tuesday on the Smith & Wesson settlement, which expanded on the arguments made earlier in this space (Walter Olson, “Plaintiff’s lawyers take aim at democracy”, Wall Street Journal, March 21).
March 27 — Kessler rebuked. Last week the Supreme Court ruled that former Food and Drug Administration chief David Kessler had made an improper power grab when he claimed for his agency “broad powers that had somehow gone unnoticed for more than half a century” to regulate tobacco, writes Chicago Tribune columnist Steve Chapman: “This was a startling revelation indeed. In 1964, the FDA said it had no authority to regulate tobacco. In 1965, it said it had no authority to regulate tobacco. In 1972, it said it had no authority to regulate tobacco. Ditto in 1977, 1980, 1988, and so on — until four years ago, when Kessler checked the attic and was pleasantly surprised to find this prerogative stashed in a box crammed with eight-track tapes and copies of Look.” (“On Target: A Setback for the Anti-Tobacco Jihad”, March 23; Tony Mauro, “For ‘Better or Worse’ FDA Can’t Regulate Tobacco”, American Lawyer Media, March 22).
March 24-26 — “Trial Lawyers Pour Money Into Democrats’ Chests”. The article everyone’s talking about: yesterday’s New York Times shines some overdue light on the trial lawyers’ frantic shoveling of vast sums into this year’s federal election races. “‘It would be very, very horrifying to trial lawyers if Bush were elected,’ said John P. Coale, a Washington lawyer involved in the tobacco litigation, who has given over $70,000 to the Democrats. ‘To combat that, we want to make sure we have a Democratic president, House and Senate. There is some serious tobacco money being spread around.'” “What’s different this time around,” said Michael Hotra, vice president of the American Tort Reform Foundation, “is that everyone recognizes that the stakes are higher. We have a candidate who is making legal reform a core issue and we certainly applaud Bush for that.” Also discusses the website ATRF has set up to monitor trial lawyer campaign spending (Leslie Wayne, “Trial Lawyers Pour Money Into Democrats’ Chests”, New York Times, March 23).
March 24-26 — Who wants to sue for a million? A group of disabled Miami residents has filed a federal lawsuit against Disney and ABC under the Americans with Disabilities Act, claiming that the screening process for the hit TV show “Who Wants To Be a Millionaire” requires the use of a touch-tone telephone and does not make alternative provision for deaf applicants. “The group is seeking class-action status for themselves and others who are deaf, blind or paralyzed and have problems using the phone or hearing the instructions.” (Jay Weaver, “Disabled 4 sue to try for TV million”, Miami Herald, March 17). Update Nov. 7: federal judge dismisses case.
March 24-26 — Next: gender-blind stage casting? A federal jury in Nashville has returned a sex discrimination verdict against a pair of historical theme restaurants that hired only male food servers as a part of attempting to convey the atmosphere of 1800s-era riverboats. The Equal Employment Opportunity Commission sued Cock of the Walk restaurants in 1996 after a woman named Susan Mathis carried a secret tape recorder in her purse while applying for a server’s job (more on the curious lack of outrage over this practice). “The servers had to represent the legendary fighters who brawled for the privilege of steering the riverboats, which netted them the best-of-the-best title: ‘Cock of the Walk’,” a group that historically did not include women.
In 1997 the EEOC came under criticism for its crusade against the “Hooters” sexy-waitress chain, which paid $3.75 million in a settlement in hopes of not having to hire “Hooters Boys”. However, the agency’s contention that entertainment value is an improper basis for sex-casting in the hiring of food servers “has never been applied [by a court] to a more mainstream restaurant such as this, which does not have sexual titillation as part of its theme,” said a lawyer for the restaurants. (Stacey Hartmann, “Restaurants’ male-server policy loses in court”, The Tennessean (Nashville), March 16).
March 24-26 — Slip, fall, head for court. Roundup of recent Chicago gravity mishaps, as reported in the Sun-Times and relayed in Jim Romenesko’s irresistible Obscure Store: “Debbie Jacques was forced to wear paper booties when she tumbled. Monica Beeks walked in deep, loose grass, and fell. John Incisi tripped on a Kleenex box left on the stairs. They’re all hanging out in civil court, hoping to get some cash.” (Tim Novak, “Health worker blames paper booties for slip”, Chicago Sun-Times, Mar. 21).
March 24-26 — Welcome visitors. A sampling of the websites that have linked to Overlawyered.com recently: the distinguished literary and arts monthly, the New Criterion; ABC News correspondent John Stossel‘s site; the Capital Research Center, which keeps an eye on politicized philanthopy; Pat Fish’s Luckyfish.com; the Nebraska Taxpayers for Freedom; Pickaway County (Ohio) Sportsmen, known for their shooting competitions; and Turkey’s Association for Liberal Thinking (Liberal Düsünce Toplulugu).
March 23 — Baron’s judge grudge. Dallas asbestos-suit czar Fred Baron may or may not have added another notch to his belt with the GOP primary defeat this month of Texas 14th District Court judge John Marshall. In 1998 Judge Marshall was presiding over asbestos litigation filed by Baron & Budd when evidence surfaced that the firm had engaged in extensive witness-coaching (see “Thanks for the Memories“); Judge Marshall referred the matter to a grand jury for possible prosecution, but the charges were eventually quietly buried without indictments. Baron, who now claims vindication, “made no secret of the fact he wants Marshall’s head,” according to alt-weekly Dallas Observer in a report just before the primary. “As early as last spring, Baron was casting about, looking for a candidate to back. ‘I talked to half a dozen people. We were looking for any candidate we could get who would be qualified to run against John Marshall'”. It had to be in the Republican primary, though, which is nowadays tantamount to election in Dallas County. First-time candidate Mary Murphy of Jenkins & Gilchrest, the one who eventually stepped forward to challenge Marshall, “insists she’ll be a fine Republican judge even though she wrote a $1,000 check to the Democratic party four years ago” among other past Democratic ties. “I had nothing to do with getting Mary Murphy to run. That’s a lie, a complete and absolute lie,” Baron told the Observer. Murphy says Baron did try to talk her into running but that it was others who convinced her. Promptly assembling an ample campaign chest, she went on to defeat the incumbent Marshall, obtaining 52 percent of the vote. (Thomas Korosec, “Bench Press”, Dallas Observer, March 9; Todd J. Gillman, “Republican judge questions challenger’s party loyalty”, Dallas Morning News, Feb. 19; Holly Becka, “Voters sent message by ousting three judges, experts say”, Dallas Morning News, March 16 (links now dead)).
Baron, whom we believe holds the title of president-elect of the Association of Trial Lawyers of America (we apparently jumped the gun recently in awarding him the title of president), has in the past been touchy about criticism. In 1998, when the Dallas Observer ran a cover-story exposé on his firm, columnist Julie Lyons said Baron had “bullie[d] the Observer’s every effort to investigate his firm’s practices, even taking the newspaper to court to discover sources, in a pattern of intimidation and paranoia such as the Observer has never experienced before.” (Patrick Williams, Christine Biederman, Thomas Korosec, Julie Lyons, “Toxic Justice”, August 18, 1998; Julie Lyons, “The Control Freak”, August 12, 1998. See also earlier Baron coverage on this website: Feb. 14, Jan. 8).
March 23 — Update: mistrial in bank robber’s suit, more litigation expected. By a vote of 9 to 3, jurors in their deliberations were of the view “that the civil rights of Emil Matasareanu, armed criminal, shooter of cops, were not violated on Feb. 27, 1998, by officers who didn’t get an ambulance to poor Emil quickly enough” after his bloody shootout with police following a North Hollywood bank robbery (see Feb. 23 commentary). A federal judge declared a mistrial, and an L.A. Times columnist writes that “the attorney for Matasareanu’s survivors is expected to bring the case against the city and two retired LAPD officers to court again. By survivors, I mean the dead man’s family, not the people he didn’t kill.” (Mike Downey, “A World With No Bad Guys, Just Topsy-Turvy Juries”, Los Angeles Times, March 17, link now dead).
March 23 — Let them sue us! In the recent media boomlet over “medical mistakes”, it’s been easy to forget that hospitals currently must anticipate years of expensive litigation if they move aggressively to withdraw practice privileges from perceived “problem doctors”. Consider the now-celebrated “Dr. Zorro” case, in which Dr. Allan Zarkin is alleged to have carved his initials into a patient’s body at New York’s Beth Israel Hospital. The hospital’s chairman, Morton P. Hyman, “vowed he would make it harder for doctors to maintain their privileges at Beth Israel and would see that hospital procedures were tightened further. … Doctors disciplined by the state will be automatically dismissed from the hospital, he announced, even if their firings leave the hospital liable. ‘Let them sue us,’ he said, pounding the table.” (Jennifer Steinhauer, “At Beth Israel, Lapses in Care Mar Gains in Technology”, New York Times, Feb. 15, not online).
March 22 — Next on the class-action agenda: liquor? Public Citizen, whose campaigns against American business often closely parallel those of the organized plaintiff’s bar, has for a while been grouping alcohol and gambling companies with tobacco and gun makers as “killer industries” in its distinctively shrill propaganda. (“Killer Industries Fund Congressional Champions of “Family Values'”, press release, Dec. 28, 1998, “Family Values, Killer Industries”, undated; both on Public Citizen website). And the pro-hospitality-business Guest Choice Network thinks it has evidence that the previously long-shot idea of mass litigation against alcoholic beverage makers may be getting to be less of a long shot:
“* The Minnesota DWI Task Force called upon their state’s criminal justice system to initiate class action litigation against makers of adult beverages.
“* MADD’s [Mothers Against Drunk Driving‘s] year-end press conference closed with a comment from president Karolyn Nunnallee that initiating litigation against alcohol and hospitality companies ‘will be an issue of discussion’ at an upcoming meeting. Although MADD did not have plans to sue ‘at this time,’ she added, ‘but never say never!'” (“They’re Bellying Up to the Bar!”, Guest Choice Network, undated). Martin Morse Wooster examines the evolution of MADD’s views in a new paper for Capital Research Center (“Mothers Against Drunk Driving: Has Its Vision Become Blurred?”, Feb. 2000).
March 22 — Rise of the high school sleepover disclaimer. Before having some of his daughter’s tenth-grade classmates out for the weekend to the family home in East Hampton, a parent at Manhattan’s tony Brearley School had his attorney draft a 765-word “liability waiver and indemnification agreement” for the other parents to sign and return. It describes the students’ impending visit to the “house and surrounding property at the above address (the ‘premises’) without charge on or about Saturday, November 20, 1999 and Sunday, November 21, 1999 during their weekend trip to East Hampton, NY (such use of the premises, the ‘visit’).” Several dense sentences later, it gets to the point: “Student and parent hereby waive any and all present and future claims related to or arising out of or in connection with the visit or any losses they, any other family member or any third party may suffer in connection therewith…” Apparently enough parents signed and the trip came off with no problem. (“Gotham: In Loco Parentis”, New York, Dec. 6; portions of disclaimer appear in printed magazine but not online).
March 22 — Newest disabled right: audio TV captioning. Decision expected this summer on Federal Communications Commission proposal that TV networks be compelled to provide at least four hours of programming a week with “secondary audio” descriptions of filmed action (“…Rhett takes Melanie in his arms and carries her to safety as Atlanta burns around them”) in hopes of giving blind viewers an “equivalent experience” to what sighted viewers are getting. Hollywood types “say descriptions will stifle creativity and jack up programming costs by about $4,000 for an hour of airtime”; audio captioning is considerably more expensive than closed-captioning for the deaf, mandated since 1998, because descriptions of filmed action call for a modicum of editorial judgment as opposed to mere transcription. And the National Federation of the Blind reports that many of its constituents have mixed feelings about the technique, finding it “irritating, overdone, and full of irrelevant information” and switching it off after a trial. (FCC captioning page; Nat’l Fed. Blind comments; Jonathan Aiken, “FCC proposes descriptive audio to help blind enjoy TV”, CNN, Feb. 24). See also our Feb. 19-21 commentary, on the ADA suit filed by deaf moviegoers in Oregon seeking to compel theaters to install closed captioning for films.
March 21 — Smith & Wesson’s “voluntary” capitulation. Today’s Wall Street Journal carries our editor’s op-ed on the Smith & Wesson settlement, adapted and expanded from yesterday’s commentary on this site. The piece asks: why aren’t Republican members of Congress and business people expressing more outrage? “It would surely make a symbolic difference if a few CEOs of companies outside the gun industry chipped in personal checks to start a legal defense fund for small gun makers being bulldozed by the cost of litigation, to give them at least a hope of surviving to fight the suits on the merits. Or if they let it be known that mayors who’ve signed on to the gun-suit jihad should stop passing themselves off as ‘pro-business.’ Not long ago the mayor of Bridgeport, Conn., Joseph Ganim, a gun-suit mastermind who’s considered ambitious for statewide office, was feted by a Chamber of Commerce in his local Fairfield County. Hey — it’s someone else’s industry he’s working to destroy, right?” (Walter Olson, “Plaintiffs Lawyers Take Aim at Democracy”, Wall Street Journal, March 21 (requires online subscription)).
March 21 — Ability to remain conscious not obligatory for train dispatcher, EEOC argues. “In the case of a former Consolidated Rail Corp. employee with a heart condition that can cause him to lose consciousness, the Equal Employment Opportunity Commission told a federal appeals court in Philadelphia that ‘while consciousness is obviously necessary to perform’ train-dispatcher tasks, ‘it is not itself a job function.'” The worker had sued Conrail under the Americans with Disabilities Act and lost in federal court; on appeal, the EEOC argued that the railroad could have accommodated his condition and that he was not a ‘direct threat’ to others, which is the standard employers must meet under the ADA if they wish to exclude disabled employees from jobs on safety grounds. “The employee was denied a dispatcher’s job that involves directing trains and taking emergency action to prevent crashes.” (“Employment Briefs: Worker denied promotion sues”, Detroit News, March 18).
March 21 — Furor just one click away. Outcry over Amazon.com’s patent of “one-click” shopping method rumbles on. Founder/CEO Jeff Bezos says the company did it in self-defense; he’s now proposed an across-the-board reduction in the length of patent protection for software and business-method patents. Some veteran intellectual-property lawyers take issue with that scheme and are also upset at a New York Times Magazine article by science writer James Gleick questioning some of the patent system’s fundamental assumptions. Until recently it was widely assumed that business methods — the discovery of a superior method for laying out the aisles of a supermarket, for example — couldn’t be patented at all. What would stores be like today if the idea of a “checkout counter” had been locked up for twenty years by the first company to file for it?
SOURCES: Victoria Slind-Flor, “The Biz-Method Patent Rush”, National Law Journal, Feb. 28; Chris Oakes, “Another Amazon Patent Furor”, Wired News, March 2; Boycott Amazon site (Free Software Foundation); Chris Oakes, “Bezos: Patents Were Self-Defense”, Wired News, Mar. 3; Chris Oakes, “Patently Absurd”, Wired News, Mar. 3; Bezos open letter, Amazon site; Dugie Standeford, “Book Publisher Launches Cybercampaign Against Amazon.com”, E-Commerce Law Weekly, March 8; James Gleick, “Patently Absurd,” New York Times Magazine, March 12; “The Harm of Patents”, O’Reilly Network, March 13; Omar Perez, “Amazon.com Patents Cast Giant Shadow Over Affiliates”, March 20; Miami Daily Business Review, March Victoria Slind-Flor, “Bar Reacts To Bezos Patent Reform Plan”, National Law Journal, March 20.
March 21 — Whether they meant to hurt anyone or not. How harsh can the legal environment become for drunk drivers? North Carolina seems to have pushed things to the ultimate extreme: its prosecutors seek to execute them when they cause fatal accidents. (Paula Christian, “Supreme Court to decide if drunk drivers get death penalty”, Greensboro News & Record, Mar. 12).
March 21 — New subpage on Overlawyered.com: Canadian corner. Finally! A page for our many readers north of the border who’ve noticed the nuggets of Canadian content we periodically slip in and would like them gathered in one spot for convenience. As befits the differences between the two legal systems, there isn’t so much “overlawyering” apparent in most of the stories we relay from Canada; but with regard to most other types and varieties of human folly, the two nations seem to be are in a neck-and-neck race.
March 20 — Liberty no longer insured by Smith & Wesson. In an ominous triumph for brute litigation force — and a setback for both democratic governance and Second Amendment liberties — the Clinton Administration and lawyers representing city governments on Friday bullied the nation’s largest gun maker into agreeing to a variety of controls on the distribution of its products, controls that the Administration had not been able to obtain through the normal legislative process. The company said its capitulation would preserve the “viability of Smith & Wesson as an ongoing business entity in the face of the crippling cost of litigation.” As the New York Times reports, the deal has “opened a new avenue for regulating the firearms industry without action from Congress, where partisan gridlock has stalled even modest gun-control legislation in recent months” — “partisan gridlock” being here employed by the Times as a pejorative synonym for the normal democratic process, which when working properly does not result in the speedy enactment of measures passionately opposed by a large constituency within the majority legislative party.
At this point it would make sense for the Republican Congressional leadership to rise up in unmistakable disapproval of the Clintonites’ invasion of their legislative prerogatives, and announce that –whatever one’s personal position on the details of gun control proposals — the use of litigation as an undemocratic end run around the legislative process is categorically wrong and must be fought with appropriate means at Congress’s disposal, such as funding cutoffs. And yet the first round of wire service stories quotes only one GOP Congressional leader, J.C. Watts of Oklahoma, as reacting to the news, and his quoted words, incredibly, are favorable: “we hail Smith & Wesson for taking a pro-active approach to the problem of violence”.
Advocates of gun-control-through-litigation — not to mention trial lawyers looking for an eventual payday from gun suits — view Smith & Wesson’s surrender as a harbinger of more victories ahead. “The legal fees alone are enough to bankrupt the industry,” boasts John Coale, one of the lawyers masterminding the city suits. “The pressure is going to be on”. Why are so few elected officials standing up to say that what’s going on is wrong?
SOURCES: Agreement text at HUD website; Smith & Wesson statement; Clinton Administration press release; “U.S. Drops Legal Threat Against Smith & Wesson”, Reuters/Excite, Mar. 17; Knut Engelmann, “U.S. Drops Legal Action Against Gun Maker”, Reuters/Excite, Mar. 17; David Ho, “Officials Praise Smith & Wesson”, AP/Excite, Mar. 17; Amy Paulson, “Smith & Wesson agrees to landmark gun safety settlement”, CNN, Mar. 17; Brigitte Greenberg, “Smith & Wesson Gets Preference”, AP/Excite, Mar. 18; Edward Walsh and David A. Vise, “U.S., Gunmaker Strike a Deal”, Washington Post, March 18; James Dao, “Gun Maker Agrees to Curbs in Exchange for Ending Suits”, New York Times, March 18 (requires free registration).
March 20 — “Study Shows Breast Implants Pose Little Risk”. “An analysis appearing in Thursday’s New England Journal of Medicine suggests silicone breast implants are safe, despite widespread perception that the controversial devices cause health problems” — not to mention a trial-lawyer-led campaign that drove the devices off the market and reaped a settlement totaling billions of dollars from manufacturers. Researchers at the University of North Carolina, Chapel Hill, performed a combined analysis of 20 earlier studies and concluded that “‘the elimination of implants would not be likely to reduce the incidence of connective-tissue diseases’ such as rheumatoid arthritis, lupus, or other illnesses caused by the misfiring of the immune system”. (Reuters/ FindLaw, Mar. 15).
March 20 — Do as we say, cont’d. Disabled-rights laws are feared by many private business owners who face the prospect of heavy fines and lawsuit settlements for noncompliance. As for the judicial branch, charged with enforcing these selfsame laws? Well, they’re often a wee bit less mindful of ’em. Howard County, Maryland Circuit Judge James B. Dudley, who isn’t disabled, concedes that his desire to stick close to the courthouse so he could answer jurors’ questions during a trial was “probably not a justification” for his having chosen to park in a clearly marked handicapped space, a practice also engaged in by local sheriff’s deputies. (Del Quentin Wilber, “Judge parks in hot water”, Baltimore Sun, Mar. 11). And in Massachusetts, following on the revelation that Boston’s opulent new courthouse lacks wheelchair access to its jury boxes and witness stands (see July 17-18, 1999 commentary), the Cape Organization for Rights of the Disabled sued over the disabled-unfriendly state of the Plymouth County courthouse; Barry Sumner couldn’t get over the threshold to divorce his wife and had to ask her to help lift his chair. (Paul Sullivan, “Suit seeks access for disabled at Plymouth court”, Boston Herald, Sept. 10, 1999). Aren’t these courts lucky they’re not private businesses?
March 20 — Costs of veggie-libel laws. Talk show hostess Oprah Winfrey keeps winning in round after round of litigation filed by cattlemen after a February 1998 show she did on mad-cow disease. “Ironically, the more she wins, the more she loses,” observes First Amendment specialist Paul McMasters. Aside from our lack of a loser-pays rule, the culprit is “agricultural-disparagement” laws enacted in 13 states, which menace media producers if they knowingly broadcast false and disparaging statements that harm the salability of perishable farm products. (“Shut up and eat everything on your plate”, Freedom Forum Online, Feb. 21; Ronald K.L. Collins and Paul McMasters, “Veggie Libel Laws Still Out to Muzzle Free Speech”, Texas Lawyer, March 30, 1998). Last year the Texas legislature turned back an attempt to repeal that state’s ag-disparagement law, though the Abilene Reporter-News pointed out that the law is hard to square with the state’s successful efforts under Governor Bush to curb excessive litigation. (“‘Veggie libel’ law Texas can live without” (editorial), April 13, 1999; “House lets ‘veggie libel’ law stand; Bill seeking repeal voted down 80-57”, AP/Dallas Morning News, May 8, 1999).
March 20 — 250,000 pages served on Overlawyered.com. Thanks for your support!
March 17-19 — Holiday literary selection: Irish squire’s litigious ways.“Then there was a bleach yard near us, and the tenant dare refuse my lady nothing, for fear of a law-suit Sir Murtagh kept hanging over him about the water course. With these ways of managing, ’tis surprising how cheap my lady got things done, and how proud she was of it. … [The tenants] knew her way, and what with fear of driving for rent and Sir Murtagh’s law-suits, they were kept in such good order, they never thought of coming near Castle Stopgap without a present of something or other nothing too much or too little for my lady eggs honey butter meal fish game, grouse, and herrings, fresh or salt all went for something. … [H]e made a good living of trespassing cattle there was always some tenant’s pig, or horse, or cow, or calf, or goose, trespassing, which was so great a gain to Sir Murtagh, that he did not like to hear me talk of repairing fences….
“As for law, I believe no man, dead or alive, ever loved it so well as Sir Murtagh. He had once sixteen suits pending at a time, and I never saw him so much himself roads lanes bogs wells ponds eel-wires orchards trees tythes vagrants gravel-pits sandpits dung-hills and nuisances every thing upon the face of the earth furnished him good matter for a suit. He used to boast that he had a law-suit for every letter in the alphabet. How I used to wonder to see Sir Murtagh in the midst of the papers in his office why he could hardly turn about for them. I made bold to shrug my shoulders once in his presence, and thanked my stars I was not born a gentleman to so much toil and trouble but Sir Murtagh took me up short with his old proverb, ‘learning is better than house or land.’ Out of forty-nine suits which he had, he never lost one but seventeen; the rest he gained with costs, double costs, treble costs sometimes but even that did not pay. He was a very learned man in the law, and had the character of it; but how it was I can’t tell, these suits that he carried cost him a power of money in the end he sold some hundreds a year of the family estate but he was a very learned man in the law, and I know nothing of the matter except having a great regard for the family. I could not help grieving when he sent me to post up notices of the sale of the fee simple of the lands and appurtenances of Timoleague. ‘I know, honest Thady,’ says he to comfort me, ‘what I’m about better than you do; I’m only selling to get the ready money wanting, to carry on my suit with spirit with the Nugents of Carrickashaughlin.'” — from Chapter 1, Castle Rackrent, subtitled An Hibernian Tale Taken from Facts, and from the Manners of the Irish Squires, Before the Year 1782, by Maria Edgeworth (1800) (biographies: Edgeworth family site, E-Search Ireland, WritePage, Morley’s) (e-text at Carnegie-Mellon; alternate e-text location, Creighton U.) (passage is from fourth long paragraph of text).
March 17-19 — Letterman sign suit. Anna Soares, 79, who lives near the Manhattan studio where David Letterman tapes his show, filed a lawsuit last month demanding $12 million from CBS because the network has declined to remove a giant illuminated sign of Letterman’s likeness which shines into her apartment’s window. Network officials say they believe they have the proper permits for the sign. Reader Gregory Kohs of American Cynic comments: “what I find preposterous is the $12 million sum the lady decided would be fair.” If the sign does not violate code, how about asking for the costs of relocating to a less-commercial neighborhood? “I think a wee bit less than $12 million would be sufficient to get her belongings into a moving truck.” (“People in the news: Woman files lawsuit over Letterman sign”, Boulder Daily Camera, Feb. 19) (second item).
March 17-19 — Go ahead and comment — if it’ll do much good. The Occupational Safety and Health Administration’s proposals on ergonomics “may be the single most costly employment policy regulation in U.S. history,” according to the Employment Policy Foundation. Now OSHA has thrown open a period for public comment on the rules, but the Clinton Administration has already signaled that the option favored by most organized employers — not proceeding with the rules at all — is unlikely to be considered, no matter what volume of critical comments may come in. (Alice Ann Love, “Public dialog opens on new workplace safety rules”, AP/Fox News, March 14; Michael D. Towle, “OSHA pushing for new regulations aimed at preventing repetitive motion injuries”, CNN, March 9).
SOURCES: OSHA proposed standard; Yahoo Full Coverage; Ron Bird and Jill Jenkins, “Ergonomics Regulation: Vague, Broad and Costly”, EPF Backgrounder, Jan. 12; National Coalition on Ergonomics (employer alliance); Matt Labash, “Hooked on Ergonomics”, Weekly Standard, Feb. 28; “OSHA Unveils Ergonomics Standard To Ire of Congress, Employer Groups”, Employment Law Weekly, Nov. 29; comments of Mercatus Center, George Mason U., National Association of Manufacturers; (via Junk Science🙂 Robert Hahn, “Bad Economics, Not Good Ergonomics,” Wall Street Journal, Nov. 24; David Saito-Chung, “What Price Workplace Safety? New Rules Spark Debate Over Science, Business Costs”, Investor’s Business Daily, Nov. 30; “New OSHA regs need rethinking” (editorial), Boston Herald, Nov. 26; “OSHAme on them!” (editorial), New York Post Nov. 24; “Repetitive Bureaucracy Syndrome” (editorial), Chicago Tribune, Nov. 24.
March 16 — Dave Barry on tobacco suits, round II. The humorist, who wrote a priceless column on the federal tobacco suit last fall (see Oct. 26) now offers an update reflecting on the news that “so far the states are spending more than 90 percent of the tobacco-settlement money on programs unrelated to smoking, such as building highways. … This is good, because we need quality highways to handle the sharp increase in the number of Mercedes automobiles purchased by lawyers enriched by the tobacco settlement.” Then there’s the new round of class-action suits contending that smokers themselves deserve money from the states, which if successful will establish the following cycle:
“1. SMOKERS would give money to THE TOBACCO COMPANIES in exchange for cigarettes.
“2. THE TOBACCO COMPANIES would then give the money to THE STATES (and their lawyers).
“3. THE STATES would then give the money to SMOKERS (and their lawyers).
“4. THE SMOKERS would then presumably give the money to THE TOBACCO COMPANIES in exchange for more cigarettes.”
But isn’t this inefficient, you may ask? Wouldn’t it be easier to order the tobacco companies to give smokers free cigarettes directly? “The trouble with that idea is that it would defeat the two main purposes of the War on Smoking, which are (1) to provide the states with money; and (2) to provide lawyers with, well, money.” Don’t miss this one (“War on Smoking always has room for another lawyer”, Miami Herald, Feb. 18).
March 16 — Judges can’t charge cost of corruption defense to insurer. “Three former San Diego Superior Court judges convicted of corruption charges can’t parlay judicial liability insurance into coverage for their criminal defense, the 9th U.S. Circuit Court of Appeals ruled.” In one of the biggest judicial scandals in California history (see our editor’s 1996 piece on the case), Michael Greer, James Malkus and G. Dennis Adams were found to have accepted gifts from prominent trial lawyer Patrick Frega in exchange for favorable rulings in cases. (Jason Hoppin, “No Coverage for Judges Convicted of Corruption”, The Recorder/ CalLaw, March 2).
March 16 — Your hairdresser — and informant? Hairdressers “are often confidantes for many people,” says Veronica Boyd-Frenkel, who holds the post of “domestic violence ombudsman” in the state of Nevada. All this is by way of explaining why her office, working with the state attorney general’s office, has launched a program to train cosmetologists to recognize signs of domestic abuse, the better to steer suspected victims to approved anti-domestic-violence groups. “They may hear things even someone’s best friend may not hear,” says Ms. Boyd-Frenkel, of the hair stylists. The Las Vegas Review-Journal, in an editorial, thinks it all rather smacks of the enlistment of ever wider circles of the citizenry as official informants (Angie Wagner, “State asks hairdressers to help domestic abuse victims”, AP/Las Vegas Review-Journal, Feb. 28; “Down the wrong path” (editorial), Feb. 29; Vin Suprynowicz, “The Libertarian: Watch what you tell your hairdresser” (expanded version of editorial), March 1; “Training would not make informants of cosmetologists” (letter to the editor from Ms. Boyd-Frenkel), March 5).
March 16 — Prof sues for right to flunk students. The University of Michigan describes as “utterly without merit” a lawsuit filed by Dental School associate professor Keith Yohn challenging the university’s refusal to fail two sophomore dental students. Yohn charges that the school bent its academic rules to allow the two to remain, and that an assistant dean sent him a belligerent email informing him that poor grades he and three other professors had given the students would be disregarded. Acting as his own attorney, Yohn went to federal court to charge the university with “deprivation of ‘freedom of speech'” and disregard of the ‘health care interest’ of the public and their children”; he also asks $125,000 for emotional distress. (David Shepardson, “U-M sued over dental grades”, Detroit News, Dec. 30; Hanna Lopatin, “Dental Prof. Sues U. Michigan for Refusing to Fail Students”, Michigan Daily/ StudentAdvantage.com, Jan. 5).