|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.
“U.K. roundup” (perennial litigant), Jun. 12-15, 2003.
“‘Resumé spam saddles employers’“, Jun. 3, 2003.
Fair Labor Standards Act, overtime and employee classification suits, 2003: “Schools roundup“, Apr. 9. 2001: “Wal-Mart- as-‘cult’-suit: it is about the money“, Jun. 14. 2000: “Goodbye to gaming volunteers?“, Sept. 12 (& update Oct. 3); “Why rush that software project, anyway?” (California overtime law), March 29; “And so now everybody’s happy” (temps fired in wake of Microsoft decision), Feb. 17 (& see letters, Dec. 20); “Strippers in court” (challenge to independent contractor status), Jan. 28; “Microsoft temps can sue for stock options“, Jan. 11. 1999: “Don’t call us professionals!“, Oct. 1-3; “Click here to sue!” (AOL volunteers who want to be recategorized as employees), Sept. 7; “Do as we say (I)” (overtime suit filed against Justice Department on behalf of its own lawyers), Aug. 30; “Click here to sue!” (Seattle law firm offers easy way to sign up for labor law class actions), Aug. 19.
“It ain’t heavy to him, he’s my brother“, May 1-2, 2003; “Firehouse blues” (too-short firefighter), Feb. 20-21, 2002; “Non-pregnant rescuers, please“, Sept. 13, 2001; “Litigators vs. standardized tests, II: who needs sharp cops?“, Feb. 9-11, 2001; “Slow down, it’s just a fire” (Canadian high court strikes down firefighter speed test), Sept. 17-19, 1999; “Perps got away, but equity was served” (Lanning v. SEPTA: challenge to running test given to prospective transit cops), Sept. 15, 1999 (& Oct. 5-7, 2001, Oct. 25-27, 2002).
“U.K.: ‘Killer wrongly sacked for axe attack’“, Apr. 7-8, 2003.
“Maybe crime pays dept.” (annual roundup of weird employment and labor law cases), Apr. 1, 2003.
Their own petard, 2003: “Wellstone campaign didn’t buy worker’s comp for its employees“, Feb. 6-9. 2002: “‘Civil Rights Agency Retaliated Against Worker, EEOC Rules’“, Jun. 14-16; “‘Disability rights attorney accused of having inaccessible office’“, Apr. 25. 2001: “EEOC sued for age bias“, Mar. 6. 2000: “White House pastry chef harassment suit“, Sept. 18. 1999: “Do as we say (I)” (overtime suit filed against Justice Department on behalf of its own lawyers), Aug. 30 (more).
“Race-bias cases gone wrong“, Jan. 24-26, 2003.
“Vt. high court: ALL-CAPS DISCLAIMER on front page of employee handbook not unambiguous enough“, Jan. 17-19, 2003.
“Ninth Circuit panel sniffs collusion in bias settlement fees“, Dec. 16-17, 2002.
Public employee entrenchment, 2002: “Munched zoo animals, gets six months severance” (Germany), Nov. 8-10; “Convicted, but still on their teaching jobs“, Jul. 10-11; “School told to rehire cocaine abuser“, Mar. 20-21. 2001: “‘Poor work tolerated, employees say’“, Nov. 15. 2000: “Reprimand ‘very serious’ for teacher” (had given 11-year-old girl money to buy marijuana), June 27; “‘Foreman who slept on job wins reinstatement’“, June 7; “From the labor arbitration front” (disallowed firing of Ct. town employee who pleaded no contest to larceny), March 28; “Not to be dismissed” (unfireable workers, Canada and U.K.), Feb. 25. 1999: “Better than reading a lunchtime novel” (IRS employee sues; fired for accessing taxpayers’ personal returns 476 times), Oct. 25; “Undislodgeable educators” (teacher peer review undermined by tenure legalities), Aug. 18.
“‘Nannies to sue for racial bias’” (U.K.), Oct. 30-31, 2002.
“Looking back on EEOC v. Sears” (sex discrimination, statistics and history), Oct. 28-29, 2002.
Appearance and authenticity, 2002: “‘Demand for more ugly people on TV’” (Norway: higher “ugly quotas” sought), Oct. 21. 2001: “Facial-jewelry discrimination charged“, Jul. 2; “Pregnant actress complains at being denied virgin role“, Jun. 21; “‘Fired transsexual dancers out for justice’“, Mar. 23-25. 2000: “Appearance-blind hiring?“, Dec. 26-29; “Latest female Santa case“, Dec. 13-14 (and see Dec. 18-19); “Wal-Mart wins female Santa case“, Oct. 12; “Next: gender-blind stage casting?” (theme restaurant’s hiring of males as “riverboat tough” food servers), Mar. 24-26.
“U.K.: ‘Dr. Botch’ sues hospital for wrongful dismissal“, Oct. 18-20, 2002; “Let them sue us!” (hospitals get sued if they withdraw privileges from questionable doctors), Mar. 23, 2000.
“‘Inundations of electronic resumes pose problems for employers’“, Oct. 16-17, 2002.
“Latest sacked-Santa suit“, Oct. 9-10, 2002 (& Dec. 13-14 and Oct. 12, 2000)
“Right to break workplace rules and then return“, Sept. 16-17, 2002.
“Personal responsibility roundup” (workers’ comp told to compensate worker for his suicide attempt), Sept. 12, 2002; “‘Court upholds workers compensation for drunk, injured worker’“, April 6-8, 2001.
National origin, language on the job, 2002: “Hiring apple pickers = racketeering“, Sept. 9-10; “‘Surgeon halts operation over foreign nurses’ poor English’“, Jul. 25; “No ‘flood’ of Muslim or Arab discrimination complaints“, Jun. 17-18; “Must-know-Spanish rules defended“, May 28-29; “High court nixes back pay for illegal aliens“, Apr. 3-4. 2001: “Sued if you do dept.: language in the workplace“, Dec. 19 (& Nov. 17, 1999); “Competitor can file RICO suit over hiring of illegal aliens“, Dec. 13-14; “Opponents of profiling, still in the driver’s seat“, Nov. 2-4; “Employee’s right to jubilate over Sept. 11 attack“, Oct. 9 (& letters, Oct. 22). 2000: Christian Science Monitor on accent discrimination, see Dec. 18-19; “Green cards gather moss” (immigration delays), Feb. 4; “Back pay obtained for illegal aliens“, Jan. 10 (& Oct. 28, 1999). 1999: “52 green-card pickup” (rules against asking for too much documentation of citizenship in hiring), Oct. 29; “Say what?” (accent), Reason, November 1997.
“Ambulance driver who broke for doughnuts entitled to sue“, Nov. 2-4, 2001 (& Jun. 28-30, 2002).
“Not worth the hassle?” (Home Depot tries to avoid federal contractor status), Jun. 17-18, 2002.
“Advertisement for ‘friendly’ employee deemed discriminatory“, Jun. 10, 2002.
“Catharine MacKinnon, call your office“, May 16, 2002.
“Soap star: ABC wrote my character out of the show” (“medical leave” for drug rehab), Apr. 10, 2002.
“Will EU silence the pipes?” (occupational noise regulation), Mar. 8-10, 2002; “Britain’s delicate soldiery“, Dec. 22-25, 2000.
Retaliation: “Inability to get along with co-workers” (employer’s counterclaim as retaliation), Mar. 8-10, 2002; “Latest lose-on-substance, win-on-retaliation case“, Oct. 16, 2001; “Latest lose-on-substance, win-on-retaliation employment claim“, Jan. 25, 2000; “Employment-law retaliation: real frogs from ‘totally bogus’ gardens“, Sept. 29, 1999.
“Aerobics studio mustn’t favor the svelte“, Feb. 27-28, 2002 (& update May 10-12).
“Jarring discord” (Audubon String Quartet), June 5, 2000 (& June 14, 2001, Nov. 13, 2001, May 10-12, 2002).
“European workplace notes“, Feb. 25-26, 2002.
“‘The Enron mythos’” (employee compensation, 401(k)), Feb. 15-17, 2002.
“Sept. 11 and court awards” (price, payouts of employment liability insurance soar), Jan. 14-15, 2002; “‘Workers win more lawsuits, awards’“, March 29, 2001.
“‘UK women can demand to know men’s salaries’“, Dec. 28, 2001-Jan. 1, 2002.
“Menace of office-park geese“, Dec. 13-14, 2001.
“‘Halliburton shares plunge on verdict’” (law-firm whistleblowing), Dec. 10, 2001.
“An ill wind” (layoffs mean prosperity for employment lawyers), Dec. 4, 2001.
“Rejecting an Apple windfall” (race discrimination suit), Nov. 30-Dec. 2, 2001.
“Sued if you do dept.: co-worker’s claim of rape“, Nov. 7-8, 2001.
“In the mean time, let them breathe spores” (OSHA and anthrax), Nov. 6, 2001.
“Judge may revive ‘Millionaire’ ADA case” (Echabazal v. Chevron: employer’s right to turn away workers who would be injured by job), Nov. 5, 2001.
“‘Attorney Ordered To Pay Fees for “Rambo” Tactics’“, Oct. 5-7, 2001; “Even the chance of loser-pays helps keep ’em honest” (pilots’ union bid for back pay), August 12, 1999.
“Employment class actions: EEOC to the rescue“, Sept. 10, 2001.
“Not discriminatory to kick sleeping worker’s chair” (includes item on U.K. employee privacy), Sept. 3, 2001.
“Firefighter’s demand: back pay for time facing criminal rap“, Aug. 29-30, 2001.
“Negligent to lack employee spouse-abuse policy?“, Aug. 29-30, 2001.
“N.J. court declares transsexuals protected class“, July 30, 2001; “‘Fired transsexual dancers out for justice’“, March 23-25, 2001; “Columnist-fest” (transgender employee sues over no-skirt order), May 31, 2000.
Age discrimination law: “Research for lawyers, courtesy of their targets“, July 6-8, 2001; “EEOC sued for age bias“, March 6, 2001; “‘Toronto Torch’ age-bias suit” (stripper), May 23, 2000; “Take the settlement, sue anyway“, March 13; “‘Tenure Gridlock: When Professors Choose Not To Retire’“, March 3-5; “‘The case for age discrimination’“, Jan. 20, 2000; “Age-bias law expands” (Calif., N.J. developments), Aug. 12, 1999.
“Court says tipsy topless dancer can sue club“, Jul. 3-4, 2001.
“‘Hearsay harassment’ not actionable“, Jun. 12, 2001.
“Dispatches from abroad” (U.K. policeman claims snoring resulted from inhalation of cannabis), May 28, 2001.
“Six-hour police standoff no grounds for loss of job, says employee“, May 21, 2001.
“Letter to the editor” (arbitration agreements), Apr. 16, 2001.
“Comparable worth in Maine” (state enacts “pay equity”), April 20-22, 2001; “Comparable worth: it’s back“, May 17, 2000.
“‘2000’s Ten Wackiest Employment Lawsuits’“, Apr. 13-15, 2001.
“‘Kava tea drinker alleges bias in FedEx firing’“, Mar. 19-20, 2001.
Ergonomics: “Narrow escape from ergonomic regs“, March 9-11, 2001; “‘Cop’s claim: gun belt too heavy’“, Feb. 23-25, 2001; “Born to regulate“, June 28, 2000; “Go ahead and comment — if it’ll do much good” (OSHA ergonomics regulations), March 17-19, 2000; “Repetitive motion injury Hall of Fame” (phone sex operator), Nov. 22, 1999.
“Forbidden paint zone” (New York City schools’ 10-foot rule), Feb. 27, 2001.
“Employees not tenured in California“, Feb. 7-8, 2001.
“Digital serfs?“, Jan. 26-28, 2001.
“‘Firms mum on troubled workers’“, Jan. 22-23, 2001.
Police-record discrimination: “Coming soon to a school near you” (applicant with police record OK’d since no convictions), Jan. 17, 2001; “‘Killer’s suit alleges job discrimination’“, Jan. 15, 2001; “You were negligent to hire me” (undisclosed rape-related conviction), May 30, 2000; “Hire that felon, or else” (Wisc. law protects felons from job discrimination), Jan. 7, 2000 (& earlier commentary: Sept. 24, 1999).
“Stressed out in New Hampshire” (stress from legitimate workplace criticism triggers workers’ comp), Jan. 4, 2000; “Stress of listening to clients’ problems” (masseuse wins benefits), June 21, 2000; “Weekend reading” (workplace psychological injury claims), July 31-August 1, 1999.
Damages, big numbers: “Big numbers” (Kroger Co. hit for $55 million after workplace accident), April 16, 2001; “Property taxes triple after wrongful-termination suit“, Dec. 20, 2000; “‘Stock Options: A Gold Mine for Racial-Discrimination Suits?’“, Dec. 11-12; “How to succeed in business?” (Christian Curry case), Nov. 20; “Wonder Bread hierarchy too white, suit charges“, July 10 (updates Aug. 4: jury awards $132 M damages and Oct. 10: judge cuts award by $97 M); “Penalty for co.’s schedule inflexibility: 30 years’ front pay” (ADA), June 16-18; “Record employment verdict thrown out” (Lane v. Hughes Aircraft), March 9, 2000; “From our mail sack: memoir of a morsel” (Calif. employer’s story), Nov. 24-25, 1999; “The stuffed-grape-leaf standard” (litigator says $300K isn’t that much money), August 14-15, 1999.
“Promising areas for suits” (broken interview promises, third party suits to sidestep workers’ comp limits), Dec. 7, 2000.
“‘Company Is Told to Stay and Face New Union’“, Nov. 24-26, 2000; “NLRB lurches left”, Oct. 11, 2000.
“Obese soldiers class action“, Nov. 10-12, 2000.
“New unfairness for old” (Employment Non-Discrimination Act), Oct. 26, 2000.
“Prospect of injury no reason not to hire” (ADA), July 5, 2000; and see disabled-rights page.
“Judge tells EEOC to pay employer’s fees“, Oct. 5, 2000.
“When sued, be sure to respond” (Wal-Mart transsexual employee), Jul. 21-23, 2000 (update Sept. 6-7: judge grants retrial after default judgment).
“EEOC: offbeat beliefs may be protected against workplace bias“, Sept. 5, 2000.
“Losing your legislative battles? Just sue instead” (contraception coverage by employer health plans), July 26-27, 2000.
Coke: “‘Coca-Cola settles race suit’“, Nov. 17-19, 2000; “Class-action lawyers to Coke clients: you’re fired“, Jul. 21-23; “‘Coke plaintiff eavesdrops on lawyers; case unravels’“, Jul. 19-20; “‘Ad deal links Coke, lawyer in suit’” (Willie Gary, suing Coke on behalf of clients, enters into a lucrative ad deal with it), May 11, 2000.
“Chutzpah is. . .” (marital-status discrimination case by boss’s ex-son-in-law), Jul. 18, 2000.
“Welcome readers” (CNNfn article advising workers thinking of suing employers; cites this site), Jun. 19, 2000; “Favorite bookmark” (head of Employment Policy Foundation likes this site), May 23, 2000.
“Look for the Kiwi label” (sweatshops), Jun. 9-11, 2000.
“Another Mr. Civility nominee” (associate at law firm asks for bonus, is fired), June 2-4, 2000; “Smudged plumage” (Angelos’s Orioles won’t hire Cuban defectors), May 24, 2000.
“Funny hats and creative drawing“, May 1, 2000.
“Employer-based health coverage in retreat?“, Mar. 31-April 2, 2000.
OSHA and at-home workers: “OSHA & telecommuters: the long view“, April 7-9, 2000; “Update: OSHA in full retreat on home office issue“, Jan. 29-30; “OSHA at-home worker directive“, Jan. 8-9; “OSHA backs off on home-office regulation“, Jan. 6; “Beyond parody: ‘OSHA Covers At-Home Workers’“, Jan. 5, 2000.
“Feds’ mission: target Silicon Valley for race complaints“, Feb. 29, 2000.
“Judgment reversed in Seinfeld case“, Feb. 26-27, 2000.
“Private job bias lawsuits tripled in 1990s“, Jan. 19, 2000; “Employee lawsuits increasing” (Society for Human Resource Management survey), August 25, 1999.
“Warn and be sued” (industrial psychologist found liable for warning co-workers of patient’s violent fantasies), Jan. 12, 2000; “Indications of turbulence” (pilot whose mental fitness for duty was challenged wins partial back pay), Dec. 1, 1999.
“Christmas lawyer humor” (“Restructuring at the North Pole” parody), Dec. 23-26, 1999.
“Truth in recruitment?” (N.J. jury verdict), Dec. 17-18, 1999.
“From the quote file” (Legal Times: U.S. Supreme Court as nation’s chief human resources manager), Dec. 15, 1999.
Under surveillance at work? “Hold your e-tongue” (employee emails), Nov. 9, 1999; “EEOC encourages anonymous harassment complaints“, Sept. 3; “Please — there are terminals present” (email censorship and harassment law), July 30; “‘Destroy privacy expectations: lawyer’” (advice managers are getting), July 26, 1999.
“Bring a long book” (New York takes average of seven years to adjudicate discrimination complaints), Nov. 4, 1999.
“Perkiness a prerequisite?” (bias suit says employer wanted workers to look like “Doris Day or the boy next door”), Nov. 2, 1999.
“New Jersey court system faces employment complaint“, Oct. 21, 1999.
“Blackboard jungle” (Ann Arbor, Mich. substitute teachers’ suit gets $30 million), Sept. 14, 1999.
“Labor Day: ‘Overworked America?’“, Sept. 7, 1999.
“Big numbers” (Kroger worker $55 million award not blocked by workers’ comp), April 16, 2001; “Block PATH to lawsuits” (claims against NY-NJ commuter line under Federal Employer’s Liability Act), Sept. 1, 1999.
“Ohio high court says forget tort reform; should unionists be cheering?” (unions exempted from exposure to many injury suits), August 17, 1999.
“You made me defame myself” (workplace defamation law doctrine of “self-compelled publication”), August 10, 1999.
“All have lost, and all must have damages” (suit against employer by insurance agent who sold allegedly deceptive policies), August 3, 1999.
Tipple your way to court, 2003: “Shouldn’t have let him get so drunk” (Australia), May 12. 2002: “‘Woman freezes; sues city, cabbie’“, Sept. 18-19; “Wasn’t his fault for lying drunk under truck“, Aug. 16-18; “Hey, no fair talking about the pot” (highway rollover), Apr. 12-14; “European workplace notes” (employer responsible for vodka overdose), Feb. 25-26; “‘Drunken Driver’s Widow Wins Court’s OK To Sue Carmaker’“, Feb. 25-26. 2001: “‘Teen hit by train while asleep on tracks sues railroad’“, Dec. 12; “‘Man suing after drunken driving crash’“, Aug. 20-21; “Don’t rock the Coke machine“, Jul. 20-22; “Court says tipsy topless dancer can sue club“, Jul. 3-4; “Jury: drunk driver hardly responsible at all for fatal crash“, Jun. 15-17; “It was the bar’s fault“, Apr. 13-15; “‘Court upholds workers compensation for drunk, injured worker’“, Apr. 6-8; “‘Woman who drove drunk gets $300,000’” (Ontario), Feb. 7-8 (& see Sept. 24, second case: $18 million); “‘All you can drink’ winner sues over fall“, Jan. 31-Feb. 1. 2000: “Zapped pylon-climber sues liquor-servers, utility“, March 6. 1999: “Personal responsibility wins a round” (judge rejects case from Pa. man who got drunk and climbed high voltage catenary), Sept. 17-19.
Maybe crime does pay, 2003: “‘Robber sues clerk who shot him during holdup’“, May 6; “Not an April Fool’s joke“, Apr. 1; “‘Burglars to be banned from suing victims’” (U.K.), Mar. 10-11; “‘Family of electrocuted thief gets $75,000’“, Feb. 26; “Tried to outrun Coast Guard in chase“, Feb. 14-16; “‘No suits by lawbreakers, please’“, Jan. 27-28 (& Jan. 31-Feb. 2). 2002: “‘Mom who drugged kids’ ice cream sues’“, Nov. 1-3; “‘Patient sues hospital for letting him out on night he killed’” (Australia, psychiatric case), Oct. 16-17; “‘Crime pays for teenage lout’” (Australia), Sept. 3-4; “‘After stabbing son, mom sues doctors’“, May 31-Jun. 2; “‘Barbed wire might hurt burglars, pensioner warned’“, May 28-29; “Hospital rapist sues hospital“, May 22-23 (& Mar. 5-7, 2003: court dismisses case); “Lawyers say taxpayers owe $41 million to smuggled illegals’ survivors“, May 10-12; “L.A. police sued, and sued” (by family of gunman killed in shootout), Apr. 12-14; “Should have arrested him faster” (frostbite in the open), Mar. 1-3; “Vandal’s dad sues store over blaze“, Feb. 6-7; “Paroled prisoner: pay for not supervising me“, Jan. 4-6. 2001: “Firefighter’s demand: back pay for time facing criminal rap“, Aug. 29-30; “‘Man suing after drunken driving crash’“, Aug. 20-21; “‘Criminals could sue their victims’” (U.K.), July 26; “‘Woman who drove drunk gets $300,000’” (Ontario), Feb. 7-8; “Crime does pay” (Denver burglar shot by police gets $1.2 million), Feb. 2. 2000: “‘Burglar sues for compensation’” (Australia), Nov. 21 (& see Apr. 1-2, 2002); “‘Fla. DUI Teen Sues Police’” (should have arrested him, he argues), Nov. 14; “Killed his mother, now suing his psychiatrists“, Oct. 2; “Not my fault, I” (woman who murdered daughter sues psychiatrists), May 17; “$65 million Texas verdict: driver at twice the legal blood limit” (drunk driver’s estate sues automaker), March 28; “From the labor arbitration front” (disallowed firing of employee who pleaded no contest to larceny), March 28; “Crime does pay, cont’d” (North Hollywood, Calif. bank robber killed in police shootout), Feb. 23 (& update March 23: mistrial declared after jury deadlock in suit by robber’s family); “County to pay ‘mountain man’ burglar $412,500“, Feb. 15. 1999: “‘Two men shot in suspected drug deal win $1.7 million’“, Dec. 15 (& update June 6, 2001: appeals court overturns); “California’s worst?” (bank robber sues after hidden tear-gas device goes off in loot), Dec. 14; “Drunks have rights, too“, Dec. 1 (& update Jul. 24-25, 2000: appeals court throws out award). See also our editor’s article on New York’s “mugger millionaire” case.
Pools & swimming, 2003: “‘Lawyers spoil fun’” (Ga. water park), May 19; “‘Florida jury awards $100M for pool accident’“, Feb. 13. 2002: “Australia’s litigation debate“, May 24-26. 2001: “Australian roundup” (bodysurfer), Nov. 23-25; “Needed: assumption of risk“, Jul. 27-29. 2000: “‘How’s the pool?’” (Las Vegas Strip’s Frontier Hotel recommended for its pre-big-lawsuits deep end), Feb. 23; “Latest shallow-end pool dive case“, Jan. 24. 1999: “Razor wire on the pool fence” (homeowner finds it too big a legal risk to let local kids swim), Jul. 27.
“Should have watched his step answering call of nature“, Mar. 8-9, 2003.
Couldn’t help eating it, 2003: “Give me my million“, Jun. 20-22; “Judge tosses McDonald’s obesity case“, Jan. 23 (& Jan. 27-28); “Anti-diet activist hopes to sue Weight Watchers“, Jan. 13-14. 2002: Letter to the editor, Oct. 23; “Claim: docs should have done more to help woman quit smoking and lose weight“, Sept. 18-19; “Personal responsibility roundup“, Sept. 12; “Fat suits, cont’d“, Jul. 26-28; “‘Ailing man sues fast-food firms’“, Jul. 25; “Sin-suit city“, Jun. 10; “McArdle on food as next-tobacco“, May 27; “‘Targeting “big food”‘“, Apr. 29-30; “Life imitates parody: ‘Whose Fault Is Fat?‘”, Jan. 23-24. 2001: “‘Diabetic German judge sues Coca-Cola for his health condition’“, Nov. 18. 2000: “‘Caffeine added to sodas aims to addict — study’“, Aug. 18-20. 1999: “Toffee maker sued for tooth irritation“, Nov. 5-7; “Not just our imagination” (calls for class-action suits against fast-food, meat purveyors), Sept. 25-26.
Warning labels and disclaimers, 2003: “‘Wacky Warning Label’ winners“, Jan. 13-14. 2002: “Satirical-disclaimer Hall of Fame” (Australian humor magazine), Oct. 28-29; “‘Warning …’” (Dave Barry humor column), Aug. 16-18; “Read the label, then ignore it if you like” (flammable carpet adhesive), Jul. 12-14; “Pitcher, hit by line drive, sues maker of baseball bat“, Apr. 19-21; “Injured in ‘human hockey puck’ stunt“, Mar. 18; “‘Before you cheer … “Sign here”‘“, Mar. 15-17; “Didn’t know cinema seats retracted“, Feb. 13-14; “Warning on fireplace log: ‘risk of fire’“, Jan. 25-27. 2001: “Et tu, UT?” (Utah will not enforce parent-signed release forms for children), Nov. 16-18; “Disclaimer rage?“, Oct. 15; “Needed: assumption of risk“, Jul. 27-29; “Quite an ankle sprain” (failure to warn of gopher holes in parks), Apr. 20-22; “‘Wacky Warning Label’ winners“, Jan. 19-21. 2000: “Columnist-fest” (Girl Scout horseback riding disclaimer), Apr. 6; “Rise of the high school sleepover disclaimer“, Mar. 22; “From our mail sack: skin art disclaimers” (tattoo consent form), Mar. 1; “Weekend reading: columnist-fest” (Laura Pulfer on warning labels), Feb. 5-6; “Never iron clothes while they’re being worn” (Wacky Warning Label contest winners), Jan. 18 (& letter to editor, Jan. 21-23). 1999: “Christmas lawyer humor” (Yuletide greetings consisting entirely of disclaimers), Dec. 23-26; “Weekend reading” (disclaimers “creeping into nearly every aspect of American life”), Jul. 31-Aug. 1.
Blamed for suicides, 2003: “‘No suits by lawbreakers, please’“, Jan. 27-28 (& Jan. 31-Feb. 2). 2002: “The blame for suicide“, Sept. 25-26; “‘Addictive’ computer game blamed for suicide“, Apr. 3-4. 2001: “Utah: rescue searchers sued“, Nov. 26, 2001; “‘Shooting range sued over suicide’“, Sept. 27; “$3 million verdict for selling gun used in suicide“, Sept. 17; “‘Suicide- Attempt Survivor Sues’” (department that issued cop his gun), Jan. 24-25.
Excuse syndromes, 2002: “Blue-ribbon excuses” (sex on train), Oct. 7-8; “So depressed he stole $300K“, Mar. 19; “Rough divorce predisposed him to hire hitman“, Feb. 13-14. 2001: “Stories that got away” (multiple-personality defense), Jul. 23; “‘Pseudologica fantastica’ won’t fly” (judge’s fibs on resume), Jun. 7 (& Aug. 20-21); “Judge buys shopaholic defense in embezzling“, May 25-27; “The malaria drug made him do it“, Mar. 28. 2000: “Blue-ribbon excuses” (baked goods mutilator, lawyer pleading incompetent self-representation), Oct. 6-9; “Predestination made him do it” (Pope’s assassin and Fatima prophecy), June 6; “Victim of the century?” (misbehaving school principal collects disability benefits for sexual compulsion), Jun. 2-4; “Prozac made him rob banks“, Mar. 1; “Blue-ribbon excuse syndromes“, Feb. 12-13; “Latest excuse syndromes“, Jan. 13-14. 1999: “Doctor sues insurer, claims sex addiction“, Oct. 13.
“Lightning bolt in amusement park’s parking lot“, Jun. 23, 2003; “‘Woman attacked by goose sues county’“, Jan. 27-28, 2003; “Quite an ankle sprain” (watch where you’re going in parks), Apr. 20-22, 2001.
“MIT sued over student’s nitrous-oxide death“, Feb. 25, 2003; “By reader acclaim: ‘Parents file suit over student’s drug death’” (abuse of Oxycontin), Jul. 25, 2001.
“Take care of myself? That’s the doc’s job“, Feb. 14-16, 2003; “Claim: docs should have done more to help woman quit smoking and lose weight” (Pa.), Sept. 18-19, 2002.
“Satirical-disclaimer Hall of Fame” (Australian humor magazine), Oct. 28-29, 2002; “Tobacco: Boeken record” (The Onion parody), June 19, 2001; “Jury orders ‘Big Chocolate’ to pay $135 billion to obese consumers” (parody), Aug. 3, 2000; “This side of parodies” (fictional account of self-inflicted icepick injury), Oct. 5-6, 1999.
Sports risks: “Sis-Boom-Sue” (cheerleading), Jan. 15-16, 2003; “Skating first, instructions later“, Sept. 25-26, 2002; “Pitcher hit by line drive sues maker of baseball bat“, Apr. 19-21, 2002; “Australian roundup” (Perth bodysurfer), Nov. 23-25, 2001; “Needed: assumption of risk” (baseball thrown into stands, skydiving), July 27-29; “‘Lawsuits could tame ski slopes’“, Feb. 6, 2001; “Promising areas for suits” (foul-ball cases and other stadium injuries), Dec. 7, 2000; “Teams liable for fans’ safety” (Colorado: hockey puck hit into stands), Aug. 15; “‘Skydivers don’t sue’“, May 26-29; “Trips on shoelace, demands $10 million from Nike“, April 7-9, 2000.
Gambling: Letter to the editor, Oct. 23; “Personal responsibility roundup“, Sept. 12, 2002; “Sin-suit city“, Jun. 10; “‘Next tobacco’ watch: gambling“, May 20-21, 2002 (& May 31); “‘Gambling addiction’ class action” (Quebec), June 20, 2001.
Hot beverages: “Litigation good for the country?” (Carl T. Bogus), Aug. 19, 2002; “British judge rejects hot-drink suits“, Mar. 29-31, 2002 (& Aug. 10, 2000); “By reader acclaim” (Illinois case; complainant sues mother), Jan. 11, 2001; “‘Court says warning about hot coffee unnecessary’” (Nevada Supreme Court), Jul. 18, 2000; “Now it’s hot chocolate“, Apr. 4, 2000.
“‘Family of boy injured by leopard may sue’“, Jul. 18, 2002; “Skinny-dipping with killer whale: ‘incredibly bad judgment’“, Sept. 21, 1999 (Oct. 7 update: case dropped).
“Wasn’t his fault for lying drunk under truck“, Aug. 16-18, 2002; “‘Win Big! Lie in Front of a Train!’“, Jun. 26-27, 2002 (& Jul. 12-14); “Australian roundup” (graffiti artist on train), Nov. 23-25, 2001; “Hit after laying on RR tracks; sues railroad“, Oct. 23, 2001.
“‘Man awarded $60,000 for falling over barrier’“, Mar. 5, 2002.
“Utah: rescue searchers sued“, Nov. 26, 2001.
“Suit blames drugmaker for Columbine“, Oct. 24-25, 2001.
“Mosh pit mayhem“, Sept. 7-9, 2001.
“Urban legend alert: six ‘irresponsibility’ lawsuits“, Aug. 27-28, 2001.
“Don’t rock the Coke machine“, Jul. 20-22, 2001.
“Tobacco: Boeken record“, June 19, 2001.
Scary!: “From dinner party to court” (U.K. hypnotist), May 22, 2001; “Hypnotist sued by entranced spectator“, March 3-14, 2001; “Girl puts head under guillotine; sues when hurt“, March 8, 2000; “Haunted house too scary“, Jan. 6, 2000; “‘Scared out of business’” (decline of community Halloween haunted houses), Nov. 5-7, 1999.
Stop having fun (children’s recreation): see schools page.
“Tendency of elastic items to recoil well known“, Mar. 6, 2001.
“By reader acclaim” (sues alleged crack dealers over own addiction), Jan. 11, 2001.
“Smoker’s suit nixed in Norway“, Dec. 18-19, 2000; “Personal responsibility takes a vacation in Miami” (Engle tobacco verdict), July 8, 1999.
“Highway responsibility” (Derrick Thomas suit), Nov. 28, 2000.
“Fat tax proposed in New Zealand“, Oct. 31, 2000.
“More things you can’t have: raw-milk cheeses“, Oct. 3, 2000; “More things you can’t have” (unpasteurized cider, New England square dances), Sept. 27, 1999; “More things you can’t have” (rare hamburgers, food sent to summer camp), August 9, 1999.
“Smoking and responsibility: columnists weigh in” (after Florida verdict), Jul. 28-30, 2000.
“‘”Whiplash!” America’s most frivolous lawsuits’” (book collects cases), Jul. 14-16, 2000.
“Inmate: you didn’t supervise me” (horseplay alone in cell), Jul. 7, 2000.
“Can’t sue over affair with doctor” (court rules it was consensual), Jun. 13, 2000.
“Risky? Who’da thunk it?” (currency speculator sues over losses), Jun. 9-11, 2000.
“‘Jury awards apparent record $220,000 for broken finger’” (hurt while dancing), May 22, 2000.
“Videogame maker agrees to furnish safety gloves“, Mar. 13, 2000.
“Letourneau scandal: now where’s my million?” (boy sues), Apr. 20, 2000.
“All dressed up“, Apr. 19, 2000.
“Down repressed-memory lane I: costly fender-bender” (eggshell-psyche plaintiff), Dec. 29-30, 1999.
“Down repressed-memory lane II: distracted when she signed” (separation agreement), Dec. 29-30, 1999.
“GM verdict roundup” (lawyers shift drunk drivers’ responsibility to automakers), Dec. 16, 1999; “Drunks have rights, too“, Dec. 1, 1999.
“Rolling the dice (cont’d)” (Internet gambler sues credit card companies that advanced him money), Dec. 7, 1999; “Rolling the dice” (same), Aug. 26, 1999.
“Responsibility, RIP” (columnist Mona Charen), Nov. 2, 1999.
“The art of blame” (death of child left in hot van), Oct. 20, 1999.
“Nominated by reader acclamation” (killer’s parents sue school district, lawmen for failing to prevent Columbine massacre), Oct. 18, 1999.
“Block PATH to lawsuits” (fall out of tree in yard, sue your employer), Sept. 1, 1999.
“To restore individual responsibility, bring back contract principles” (Cato Institute paper by Prof. Michael Krauss), Aug. 16, 1999.
“Somebody might trip” (NYC condemns prints-of-the- Hollywood-stars sidewalk as slip hazard), Aug. 13, 1999.
“All have lost, and all must have damages” (huge award to salesman who hawked bad insurance policies since he’s a victim too), Aug. 3, 1999.
Through much of American history, courts discouraged lawsuits arising from risks that individuals were deemed to have assumed in the course of going about familiar activities, such as the risk of being thrown while horseback riding, of slipping on toys underfoot while visiting a house with children, or of being hit with a foul ball while attending a ball game. (Stored search on “assumption of risk”: Google, Alta Vista). Under the doctrine of “contributory negligence”, they often dismissed, as a matter of law, cases where a complainant’s own negligence had helped cause an accident. They were even less likely to entertain cases in which someone’s knowing or deliberate dereliction had placed him in physical peril, such as cases in which people sue over injuries sustained in the course of committing crimes or attempting suicide. And finally, they gave broad respect to express contractual disclaimers or waivers of liability: if a party was on notice that the other side in a transaction wasn’t willing to assume a responsibility, it wouldn’t be easy to tag them later with that responsibility in court.
By the 1950s all these old barriers to liability had come under sustained attack in the law schools, where they were viewed as insulating defendants’ misconduct from legal scrutiny and impeding the forward march of liability law as a (high-overhead) variety of social insurance. Most states moved from contributory negligence to comparative negligence, which allows a plaintiff whose negligence helped cause an accident to sue over it anyway, though for a reduced recovery. Waivers and disclaimers began to be struck down as unconscionable, against public policy, not spelled out with sufficient clarity, etc. And assumption of risk was whittled down by way of a dozen techniques: the most influential torts scholar of the postwar period, William Prosser, took the view that “that implied reasonable assumption of risk should not be allowed to reduce a plaintiff’s damage in any way” (Chase Van Gorder, “Assumption of Risk Under Washington Law“).
The result is today’s American legal environment in which plaintiffs routinely try their luck at suits after being injured climbing high-voltage utility structures while drunk, skinny-dipping in icy pools with captive killer whales, trying “wheelies” and other stunts on industrial forklifts, and smoking for decades. Some of these suits succeed at obtaining settlements while others fail, and it’s important to bear in mind that assumption of risk and related doctrines have not disappeared entirely. Their general decay, however, has been important in bringing us today’s hypertrophy of such areas of law as premises liability, product liability and recreational liability.
The website of attorney D. Pamela Gaines has useful resources on assumption of risk as it applies to such areas as premises liability, recreation and amusement parks. At the International Mountain Bicycling Association site, Tina Burckhardt explains “recreational use statutes” which grant some protection from liability lawsuits to landowners who allow free recreational use of their property.
April 29-30 — “Gunning for manufacturers through courts”. “A NYC council member is seeking to limit access to guns in NYC even more by opening the door to lawsuits against gun manufacturers who don’t follow a ‘corporate code of conduct’. David Yassky, a former law professor and aide for Chuck Schumer when he was a congressman, received money from 189 attorneys and others of his ‘social class’ in his successful campaign for Council, and filed an amicus brief in the US vs Emerson case encouraging a finding that in the 2nd Amendment, ‘bear arms’ meant for military use only.” (“Gunning for manufacturers through courts”, “Cut on the Bias” blog (Susanna Cornett), Apr. 22; “Metro Briefing: New York”, New York Times, Apr. 22).
On a happier note, the city of Boston last month dropped its extortionate lawsuit against the gun industry (David Abel, “Gun control forces say suits to go on”, Boston Globe, Mar. 29; “Mayor was right to drop gun case” (editorial), Boston Herald, Mar. 29 (“This case was frankly a publicity stunt — an expensive publicity stunt supposedly in the cause of ‘public health.’ But the roughly $500,000 it cost so far was diverted from other goals.”); “Boston Abandons Lawsuit Against Firearms Manufacturers”, National Shooting Sports Foundation press release, Mar. 28). (DURABLE LINK)
April 29-30 — “Erin Brockovich, the Brand”. “She gets confused with Heather Locklear and Suzanne Somers. … Over the course of last year, she became the most popular public-speaking client in the William Morris stable.” For newer readers, here’s our take. (Austin Bunn, New York Times Magazine, Apr. 28). (DURABLE LINK)
April 29-30 — Lawyers for chimps? “More and more legal reformers … are pressing to give chimpanzees legal standing — specifically, the ability to have suits filed in their names and to ask courts to protect their interests. … The advocates of granting legal standing to chimps have gained support from constitutional scholar Laurence Tribe, a Harvard Law School professor.” (David Bank, “A Harvard Professor Lobbies to Save U.S. Chimps From Monkey Business”, Wall Street Journal, Apr. 25 (online subscribers only); “Monkeying Around With the Constitution”, Ribstone Pippin blog, Apr. 25; InstaPundit, Apr. 25) (& see May 14-15). (DURABLE LINK)
April 29-30 — “Targeting “big food'”. The “campaign against Big Food is following the attack on Big Tobacco almost to a ‘T.’ … Any day now, I expect to hear that Big Food has secretly been adding special ingredients with known health risks — like salt — to their products for years to tempt the ignorant.” (Bruce Bartlett, “Targeting ‘big food'”, National Center for Policy Analysis opinion editorial, Apr. 3). It is already being argued that obesity, like smoking, imposes costs through health care provision on the non-obese, allegedly justifying more intensive government regulation of lifestyle choices (Pierre Lemieux, “It’s the Fat Police,” National Post (Canada), Apr. 6). And a 1998 revision by the federal government of its Body Mass Index standards more or less ensures that a large portion of the population will be considered to be suffering from a weight problem; according to the index, NCAA basketball stars Lonny Baxter of Maryland, Oklahoma’s Aaron McGhee, Kansas’s Nick Collision and Indiana’s Tom Coverdale are all considered “overweight” and in need of more exercise. (“Husky hoops stars?”, Center for Consumer Freedom, Mar. 27). (DURABLE LINK)
April 26-28 — “Positive Nicotine Test To Keep Student From Prom”. In Hartford City, Ind., Blackford High School has banned senior Rob Mahon, 18, from the senior prom after he tested positive for nicotine in a random drug test. Mahon, who is the editor of the school newspaper, “did not smoke on school property and is upset that he’s being punished for an activity that is legal for someone his age.” School officials, however, said that Mahon “knew the rules prohibiting drugs, alcohol and nicotine before he agreed to the testing that’s required for those in extracurricular activities.” The Indiana Civil Liberties Union is planning to represent him in a legal challenge. (TheIndyChannel.com, Apr. 25). Update May 10-12: school backs down. (DURABLE LINK)
April 26-28 — “Support case hinges on failed sterilization”. An attorney for plaintiff Heather Seslar is attempting to convince the Indiana Supreme Court that the doctor whose effort to sterilize Seslar fell short, with the result that she became pregnant and gave birth to a healthy baby girl, should pay for the entire cost of raising the child to adulthood. “A lower court already has sided with Seslar. Unless the Supreme Court overturns that decision, Indiana would become the fifth state to grant parents who underwent sterilization the right to sue doctors for the costs of raising an unexpected child. California, New Mexico, Oregon and Wisconsin also recognize the right.” (Vic Ryckaert, Indianapolis Star, Apr. 4). (DURABLE LINK)
April 26-28 — Columbia Law School survey on public attitude toward lawyers. A new nationwide survey commissioned by Columbia Law School asked a thousand respondents nationwide what they thought of the profession. It “contains some disheartening news for lawyers. … A full sixty percent of respondents said lawyers are overpaid, compared with a mere two percent who thought lawyers underpaid.” Thirty-nine percent considered lawyers either especially dishonest or somewhat dishonest, while 31 percent found them especially honest or somewhat honest, which left them faring better than politicians in the honesty ratings but sharply worse than police. Finally, respondents were asked: “Do you believe that lawyers do more harm than good by filing lawsuits that may raise the cost of doing business, or do they perform a beneficial role by holding big companies accountable to the law?” The wording of this question is decidedly peculiar — its first half, for example, states the case critical of trial lawyers about as ineptly as it is possible to do — and yet the side holding that lawyers “perform a beneficial role” prevailed by only a fifty to forty-one percent margin. (Michael C. Dorf, “Can the Legal Profession Improve Its Image?”, FindLaw, Apr. 17). (DURABLE LINK)
April 25 — “Disability rights attorney accused of having inaccessible office”. “The attorney who sued Clint Eastwood over disability accommodations at his hotel near Carmel was himself sued Tuesday on allegations his office bathroom was not wheelchair friendly. The federal suit was brought by George Louie, executive director of Oakland-based Americans with Disabilities Advocates. He alleges the bathroom and other amenities at attorney Paul Rein’s office in Oakland violate the Americans with Disabilities Act.” (AP/Contra Costa Times, Apr. 23)(see Oct. 2, 2000, Sept. 21, 2000 and links from there). Update: the allegations, which Rein vigorously contested, were later dropped without payment, according to court records (Joy Lanzendorfer, “Enforced Compliance”, MetroActive, Dec. 26, 2002). (DURABLE LINK)
April 25 — Mold sweepstakes: You May Already Be a Winner. “Entertainer Ed McMahon is suing his insurance company for more than $20 million, alleging that he was sickened by toxic mold that spread through his Beverly Hills house after contractors cleaning up water damage from a broken pipe botched the job.” (“Ed McMahon sues over mold, says dog died”, Los Angeles Times/ AZCentral.com, Apr. 9). Buyers of homeowners’ insurance may wind up among the losers: “State Farm, the largest insurer in California representing 22 percent of the market, decided last week that it would no longer write new homeowner policies in the state starting May 1. While that’s partly due to past losses, it’s also in large part due to the rising cost of mold-related claims. … In Texas, which has had the most claims increases [over mold] in the nation, rates have already nearly doubled for many homeowners.” (Deborah Lohse, “Mold becomes toxic issue to homeowners, insurers”, San Jose Mercury News, Apr. 23). Mold claims “could be the next asbestos. Yes, there’s a bit of difference: Asbestos fibers are known to cause disease and death. Whether household mold can do so is, to put it charitably, a matter of debate. But that hasn’t slowed the litigation over mold.” (Mary Ellen Egan, “The Fungus that Ate Sacramento,” Forbes, Jan. 21). Update May 21, 2003: McMahon’s claim said to have reaped $7 million settlement.
TEXAS MOLD LINKFEST: “Insurers estimate they paid out $670 million for mold-related property damage in Texas in 2001, more than double the total in 1999.” (Egan, Forbes, link above). See (all links 2001:) Jacob Sullum, “Fungi phobia”, TownHall.com, Aug. 21 (the wonderfully named Dripping Springs case); Bill Summers, “Mold cases could have a rotten effect”, San Antonio Express News, Oct. 18, reprinted at Texans for Lawsuit Reform; Eric Berger, “Mold Fears Overblown, Experts Say”, Houston Chronicle, July 12; CALA Houston links; Shannon Buggs, “Tackling Questions on Mold Coverage”, Houston Chronicle, Nov. 18; W. Gardner Selby, San Antonio Express News, “Coverage cut under review”, Nov. 13. (DURABLE LINK)
April 25 — Durbin’s electability. Illinois Democratic Senator Dick Durbin, a key Capitol Hill ally of the trial lawyers (he was the point man in defense of their unconscionable fees in the tobacco affair, for example), ran less well in his recent primary than incumbents usually do. Could he be headed for one-term status, like former Sen. Carol Moseley-Braun? (Steve Neal, “Durbin lacks the profile of a winner”, Chicago Sun-Times, Apr. 24)(see July 7, 2000). (DURABLE LINK)
April 23-24 — Fieger’s ivied walls. Controversial attorney Geoffrey Fieger is in the news again after losing a murder case for a client in Sarasota, Fla.: “Chief Circuit Judge Thomas Gallen said Fieger should be punished for calling two men who served on the jury ‘Nazis’ and ‘creeps.’ Fieger fired back, saying he has a First Amendment right to say bad things about jurors and that he may sue the judge for saying otherwise. Gallen said the Michigan lawyer’s ‘outrageous’ behavior violated a Florida Bar rule that says an attorney ‘shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of’ court officials and jurors.” Fieger client Ralf Panitz, 42, “was convicted March 26 of killing his ex-wife, Nancy Campbell, on July 24, 2000, the same day he, Campbell and his new wife appeared on an episode of the ‘Jerry Springer Show.'” (Jennifer Sullivan, “Attorney, judge in war of words”, Manatee (Fla.) Herald-Tribune, Apr. 2).
Civility disputes involving Fieger are of course a staple item on this site. Last year, for example (see May 3, 2001), he faced a probe before the state attorney grievance commission following reports that he used his radio show to unleash “an obscenity-laced tirade” against three state appeals judges. For more examples of the Southfield, Mich.-based attorney’s style, see Sept. 14, 1999 and May 31, 2001. So it came as a bit of a shock to learn that the litigator’s name is now going to be adorning a prominent Michigan institution of legal education. According to Michigan State University’s law school, “Fieger has made a gift of $4 million to initiate and sustain the Geoffrey Fieger Trial Practice Institute,” billed as “the first trial practice institute at a law school designed specifically to train law students as successful trial lawyers.”
Rising to the dignity of the occasion in a press release, MSU-DCL dean and professor Terence Blackburn endorsed the school’s new benefactor in language well suited for a client recruitment brochure. “Mr. Fieger is arguably the most preeminent [sic] trial lawyer in the country, and he is an inspiration to our students,” Blackburn said. “It is Mr. Fieger’s dedication to his clients, his thorough preparation for each case and his skill in the courtroom that serve as a model for this institute.” (“Fieger’s $4 Million Gift To Law College at MSU Establishes Nation’s First Trial Practice Institute for Law Students”, MSU news release, Nov. 27; “$4 million gift to MSU-DCL funds trial practice institute”, MSU News, Dec. 6; “Fieger’s gift”, Lansing State Journal, Nov. 29 (defense of grant); letter from concerned alum, Detroit Free Press, Nov. 28). Last year the Detroit Free Press found Fieger unapologetic about charges by his opponents that he bullies and badgers witnesses on the stand. (Dawson Bell, “Fieger’s wins lose luster in appeals”, Detroit Free Press, May 29). “‘Trials are battles,’ Fieger said. Intimidating witnesses ‘is what trial attorneys do,’ he said.” Can we assume that it will therefore be a skill taught at the new institute? (DURABLE LINK)
April 23-24 — “Woman sues snack-food company for spoiling diet”. By reader acclaim: “A woman is suing a snack food company for $50 million saying its label on Pirate’s Booty corn and rice puffs foiled her diet. … Pirate’s Booty, manufactured by Robert’s American Gourmet Food, Inc., was recalled in January after the Good Housekeeping Institute found it contained 147 calories and 8.5 grams of fat, while its label said it contained only 120 calories and 2.5 grams of fat.” Now Meredith Berkman, 37, is suing claiming the mislabeling caused her to suffer “emotional distress” and “weight gain…mental anguish, outrage and indignation.” (AP/Salon, Apr. 13). Update: Feb. 9, 2006 (Berkman objects to settlement). (DURABLE LINK)
April 23-24 — Norway toy-ad crackdown. Yes, reports Bjorn Staerk on his blog (Mar. 25, Apr. 2), the Scandinavian country really does have an Ombudsman for Gender Equality whose apparent duties include monitoring sexism in toy ads, and yes, this ombudsman really is proposing to ban a particular toy ad which refers to boys as “tough”. (DURABLE LINK)
April 22 — Lawyers puree Big Apple. Figures from the City of New York’s fiscal year 2000 show that the city paid a record $459 million in judgments and settlements, a 10.5 percent increase over the previous fiscal year. $406 million of that figure was laid out on personal injury claims, up 11.5 percent from fiscal 1999. (Elaine Song, “Costs Climb for the City”, New York Law Journal, Mar. 21; “New York Sees Higher Verdicts in 2001”, New York Law Journal, Mar. 21; “Tort City, U.S.A.” (editorial), Wall Street Journal, Apr. 17 (online subscribers only). (DURABLE LINK)
April 22 — “How to Stuff a Wild Enron”. P.J. O’Rourke gives a flat tire to the pols and pundits who’ve tried to get anti-capitalist mileage out of the Enron scandal (The Atlantic, Apr.).
MORE ENRON LINKS: C. William (Bill) Thomas, “The Rise and Fall of the Enron Empire”, Texas Society of CPAs (via Political Hobbyist, who generously names us “one of the more famous blogs out there in the blogosphere“); Renee Deger, “Widening the Enron Net”, The Recorder, Apr. 9 (law firms, investment banks sued); Laura Goldberg, “Enron plaintiffs target bankers’ deep pockets”, Houston Chronicle, Apr. 5; Otis Bilodeau, “Gimme Shelter”, Legal Times, Apr. 16 (“In a worst-case scenario — where damages are so high that the firm itself goes bankrupt — partners in a general partnership could be forced to pay off the damage award over their entire careers.”); Renee Deger, “Leaning on the Lawyers”, The Recorder, Apr. 15; (prospects for Vinson & Elkins, Kirkland & Ellis); “Lerach’s Enron Sweep” (editorial), Wall Street Journal, Apr. 17 (online subscribers only); bloggers “Robert Musil” Apr. 14 and other dates, “Max Power” Apr. 10. (DURABLE LINK)
April 22 — “St- st- st- st- stop.” “A man with a stutter was turned down as a driving instructor by the British School of Motoring because he couldn’t say ‘stop’ fast enough in an emergency”. Mr. Arsenal Whittick, 39, has filed a complaint with an employment tribunal charging disability discrimination. (“Stutterer turned down as driving instructor”, Evening Standard, Apr. 11)(via andrewsullivan.com, from which our headline is also swiped). And Dave Kopel, analyzing the pending Supreme Court case of Chevron v. Echabazal (can employers exclude physically vulnerable workers from jobs that might kill them? — see Mar. 1), includes a very kind reference to this site. (National Review Online, Mar. 27). (DURABLE LINK)
April 21 — Social notes from all over: New York Blog Bash. It isn’t easy to get our editor over to Avenue B, but he brings back a glowing report of the Friday night event hosted by the formidable duo of Orchid and Asparagirl and with econ-blog-diva Megan McArdle in attendance. Not only were those present uniformly agreeable to converse with, but their weblogs — see the RSVP list at Daily Dose for a not quite complete list — collectively make for an afternoon’s browse that’s about 8,500% percent more enjoyable and stimulating than is afforded by, say, the Sunday New York Times. Update: photos courtesy Asparagirl (our editor is the one with the beard and dark clothes). (DURABLE LINK)
May 10 — “Barbecue group sued over contest”. Jim Woodsmall of Jumpin’ Jim’s BBQ in Johnston, Ia., has sued the Kansas City Barbeque Society, charging that his business has suffered because the society has failed to award his barbecue recipe the stellar ratings he feels it deserved. The enthusiast group fails to follow impartial and uniform rules in its cook-offs, Woodsmall claims, which he thinks amounts to fraud and negligence. (Lindsey A. Henry, Des Moines Register, May 8).
May 10 — Fortune on Lemelson patents. We’ve run a couple of items on the amazing Jerome Lemelson patent operation (see Jan. 19, 2001 and August 28, 1999) and now Fortune weighs in with the best overview we’ve seen. Lemelson, who died in 1997, filed patents for hundreds of ideas and industrial processes which he said he had invented, and which underlay such familiar modern technologies as VCRs, fax machines, bar-code scanners, camcorders and automated warehouses. A mechanical genius? Well, at least a genius in figuring out the angles that could be worked with American patent law: by filing vague patents and then arranging to delay their issuance while amending their claims to adjust to later technological developments, Lemelson steered them into the path of unfolding technology, eventually securing bonanzas for his tireless litigation machine. Foreign-owned companies folded first because they were afraid of American juries, which helped give Lemelson the war chest needed to break the resistance of most of the big U.S.-based industries as well. $1.5 billion in royalties later, his estate continues to sue some 400 companies, with many more likely to be added in years to come. (Nicholas Varchaver, “The Patent King”, May 14).
May 10 — Prospect of $3 gas. One reason refinery disruptions lead to big spikes in the price of gasoline at the pump: environmental rules end up mandating a different blend of gas for each state, hampering efforts to ship supplies to where they’re most needed. (Ron Scherer, “50 reasons gasoline isn’t cheaper”, Christian Science Monitor, May 4; Ben Lieberman (Competitive Enterprise Institute), “Skyrocketing Ga$: What the Feds Can Do”, New York Post, April 23, reprinted at CEI site).
May 10 — Welcome Norwegian readers. We get discussed, and several of our recent news items summarized, on the “humor” section of Norway’s Spray Internet service (Bjørn Tore Øren, “For mange advokater”, May 8). Among other non-U.S. links which have brought us visitors: Australia’s legal-beat webzine, Justinian (“A journal with glamour — yet no friends”; more); Baker & Ballantyne, in the U.K.; the Virtual Law Library pages on media law compiled by Rosemary Pattenden at the University of East Anglia; and Sweden’s libertarian- leaning Contra.nu (“Har advokatkåren i USA för stort inflytande?” they ask of us)(more).
May 9 — Oklahoma forensics scandal. After serving fifteen years in prison on a 1986 rape conviction, Jeffrey Pierce was released Monday after new DNA evidence refuted testimony against him by a forensic specialist whose work is the subject of a growing furor. “From 1980 to 1993, Joyce Gilchrist was involved in roughly 3,000 cases as an Oklahoma City police laboratory scientist, often helping prosecutors win convictions by identifying suspects with hair, blood or carpet fibers taken from crime scenes.” Although peers, courts and professional organizations repeatedly questioned the competence and ethical integrity of her work, prosecutors asked few questions, perhaps because she was getting them a steady stream of positive IDs and jury verdicts in their favor. Now Oklahoma Gov. Frank Keating has ordered an investigation of felony cases on which Gilchrist worked after an FBI report “found she had misidentified evidence or given improper courtroom testimony in at least five of eight cases the agency reviewed.” (Jim Yardley, “Flaws in Chemist’s Findings Free Man at Center of Inquiry”, New York Times, May 8; “Inquiry Focuses on Scientist Used by Prosecutors”, May 2)(reg)
May 9 — Not about the money. Foreign policy making on a contingency fee: “When attorneys agreed to champion the causes of American victims of terrorism in the Middle East, it wasn’t supposed to be about the money.” We’ve heard that one before, haven’t we? “But the prospect of multimillion-dollar fees in what once seemed to be long-shot litigation against Iran has left lawyers fighting over fees in federal court in Washington, D.C. High principles of international law and justice aren’t at stake. It’s simply a matter of who gets paid.” (Jonathan Groner, “Anti-Terrorism Verdicts Spur Big Fee Fights”, Legal Times, April 18).
May 9 — Update: cookie lawsuit crumbles. Half-baked all along, and now dunked: a federal court in March dismissed a would-be class action lawsuit against web ad agency DoubleClick over its placing of “cookies” on web users’ hard drives. Other such suits remain pending (see also Feb. 2, 2000); this one was brought by Milberg Weiss’s Melvyn Weiss and by Bernstein, Litowitz (Michael A. Riccardi, “DoubleClick Can Keep Hand in Cookie Jar, Federal Judge Rules”, New York Law Journal, March 30).
May 8 — “Lawyers to Get $4.7 Million in Suit Against Iomega”. “Lawyers in a class action suit alleging defects in portable computer Zip disk drives will get the only cash payout, up to $4.7 million, in a proposed settlement with manufacturer Iomega Corp., according to the company’s Web site.” Rebates of between $5 and $40 will be offered to past customers who buy new Iomega products, while Milberg Weiss and three other law firms expect to split their fees in crisp greenbacks, not coupons, if a Delaware judge approves the settlement in June. (Yahoo/Reuters, April 12) (Rinaldi class action settlement notice, Iomega website).
May 8 — A definition (via Sony’s Morita and IBM’s Opel). “Litigious (li-TIJ-uhs) adjective: 1. Pertaining to litigation; 2. Eager to engage in lawsuits; 3. Inclined to disputes and arguments. [From Middle English, from Latin litigiosus from litigium, dispute.]
“‘My friend John Opel of IBM wrote an article a few years ago titled ‘Our Litigious Society,’ so I knew I was not alone in my view that lawyers and litigation have become severe handicaps to business, and sometimes worse.” — Sony co-founder Akio Morita (Wordsmith.org “A Word a Day” service, scroll to Jan. 26).
May 8 — “Halt cohabiting or no bail, judge tells defendants”. “A federal judge in Charlotte is using a 19th-century N.C. law banning fornication and adultery, telling defendants they won’t be freed on bond until they agree to get married, move out of the house or have their partner leave. U.S. Magistrate Judge Carl Horn won’t release a criminal defendant on bond knowing that he or she will break the law. And that includes North Carolina’s law against unmarried couples cohabiting, placed on the books in 1805.” (Eric Frazier and Gary L. Wright, Charlotte Observer, April 4) (see also May 18, 2000).
May 7 — Says cat attacked his dog; wants $1.5 million. “A San Marcos man has filed a $1.5 million claim against the city because a cat who lives in the Escondido Public Library allegedly attacked his dog.” Richard Espinosa says he was visiting the library on November 16 with his assistance dog Kimba, a 50-pound Labrador mix, when the feline, named L.C. or Library Cat because it’s allowed to live in the building, attacked the dog inflicting scratches and punctures. As for Espinosa, wouldn’t you know, he “was emotionally traumatized and suffers from flashbacks, terror, nightmares and other problems.” Four lawyers declined to take his case and he finally filed it himself. “The cat was apparently uninjured.” (Jonathan Heller, “Escondido gets $1.5 million claim; library cat allegedly assaulted dog”, San Diego Union-Tribune, May 4) (see letter to the editor from Espinosa, June 13).
May 7 — Judge throws out hog farm suit. As was reported a few months ago, a number of environmental groups aim to take a lesson from the tobacco affair by using mass lawsuit campaigns to pursue various goals which they haven’t been able to secure through the legislative and electoral process. To do this they’ve teamed up with tobacco-fee-engorged trial lawyers; the nascent alliance got lots of publicity in December with one of its first projects, suing Smithfield Farms for billions over the nuisance posed by large-scale hog farming, a project apparently masterminded by Florida trial lawyer Mike Papantonio (tobacco, asbestos, fen-phen) and with suits against chicken and livestock operations promised in later phases of the effort (see Dec. 7, 2000). Far less publicity has been accorded to Judge Donald W. Stephens’s ruling in March which threw out the first two lawsuits as having failed to state a legal claim against the large hog packer and raiser. (Appeal is expected.) Power scion Robert F. Kennedy, Jr. is still on board with his headline-ready name to front for the lawyers in the press, but he doesn’t seem to have gone out of his way to call attention to the adverse ruling (“North Carolina judge dismisses lawsuits against hog producer”, AP/MSNBC, March 30; Scott Kilman, “Environmental groups target factory-style hog farm facilities”, Wall Street Journal/MSNBC, undated; Smithfield press release, March 29).
MORE: National Public Radio, “Living on Earth” with Steve Curwood and reporter Leda Hartman, week of Feb. 16; Water Keeper Alliance (Kennedy’s group), hog campaign homepage with list of lawyers (J. Michael Papantonio, Steven Echsner and Neil Overholtz, Levin, Papantonio, Pensacola, Fla.; Thomas Sobol, Jan Schlichtmann, Steven Fineman and Erik Shawn of Lieff, Cabraser, New York and Boston; F. Kenneth Bailey, Jr. and Herbert Schwartz of Williams Bailey, Houston; Howard F. Twiggs and Douglas B. Abrams of Twiggs, Abrams, (Raleigh, N.C.), Ken Suggs and Richard H. Middleton, Jr. of Suggs, Kelly & Middleton (Columbia, S.C.), Joe Whatley, Jr., Birmingham, Ala.; Kevin Madonna, Chatham, N.Y.; Stephen Weiss and Chris Seeger, New York; Charles Speer, Overland Park, Kan.; Hiram Eastland, Greenwood, Miss.) Compare “Conoco Could Face $500 Million Lawsuit Over Bayou Water Pollution Problems”, Solid Waste Digest: Southern Edition, March 2001 (page now removed, but GoogleCached) (Papantonio campaign in Pensacola).
May 7 — Website accessibility law hits the U.K. “Scottish companies were warned yesterday that they could face prosecution if their websites are not accessible to the disabled. Poorly-designed websites are often incompatible with Braille software.” (more) (yet more) (Pauline McInnes, “Firms warned on websites access”, The Scotsman, April 19).
May 4-6 — By reader acclaim: “Vegetarian sues McDonald’s over meaty fries”. Seattle attorney Harish Bharti wants hundreds of millions of dollars from the burger chain for its acknowledged policy of adding small amounts of beef flavoring to its french fries, which he says is deceptive toward vegetarian customers (ABCNews.com/ Reuters, May 3). Notable detail that hasn’t made it into American accounts of the case we’ve seen, but does appear in the Times of India: “When he is not practising law in Seattle, Bharti says he teaches at Gerry Spence’s exclusive College for Trial Lawyers in Wyoming”. Does this mean you can be a predator without being a carnivore? (“US Hindus take on McDonald’s over French fries”, Times of India, May 3) (see also Aug. 30, 1999).
May 4-6 — Mississippi’s forum-shopping capital. The little town of Fayette, Miss., reports the National Law Journal, is “ground zero for the largest legal attack on the pharmaceutical industry” in memory. Tens of thousands of plaintiffs are suing in the Fayette courthouse over claimed side effects from such drugs as fen-phen, Rezulin, and Propulsid, not because they’re local residents (most aren’t) but because the state’s unusually lax courtroom rules allow lawyers to bring them in from elsewhere to profit from the town’s unique brand of justice. The townspeople, nearly half of whom are below the poverty level and only half of whom graduated from high school, “have shown that they are willing to render huge compensatory and punitive damages awards”. Among other big-dollar outcomes, Houston plaintiff’s lawyer Mike Gallagher of Gallagher, Lewis, Serfin, Downey & Kim “helped win a $150 million compensatory damages verdict for five fen-phen plaintiffs in Jefferson County on Dec. 21, 1999. The jury deliberated for about two hours…” There’s just one judge in Fayette County to hear civil cases, Judge Lamar Pickard, whose handling of trials is bitterly complained of by out-of-town defendants. As for appeal, that route became less promising for defendants last November when plaintiff’s lawyers solidified their hold on the Mississippi Supreme Court by knocking off moderate incumbent Chief Justice Lenore Prather.
Lots of good details here, including how the Bankston Drug Store, on Main Street in Fayette since 1902, has the bad fortune to get named in nearly every suit because that tactic allows the lawyers to keep the case from being removed to federal court. Plaintiff’s lawyer Gallagher, who also played a prominent role in the breast implant affair, says criticism of the county’s jurors as easily played on by lawyers “‘sounds racist’, since the jury pool is predominantly black”. He also brushes off defendants’ complaints about forum-shopping with all the wit and sensibility at his command: “They want to tell me where I can sue them for the damage they caused? They can kiss my a**.” (Mark Ballard, “Mississippi becomes a mecca for tort suits”, National Law Journal, April 30).
May 4-6 — Agenda item for Ashcroft. Attorney General Ashcroft could make a real difference for beleaguered upstate New York communities by backing off the Justice Department’s Reno-era policy of avid support for revival of centuries-dormant Indian land claims, which went so far as to include the brutalist tactic of naming as defendants individual landowners whose family titles had lain undisturbed since the early days of the Republic (see Oct. 27, 1999, Feb. 1, 2000) (John Woods, “Long-Running Indian Land Claims in New York May Hinge on Ashcroft’s Stance”, New York Law Journal, April 16).
May 3 — “Family of shooting victim sue owners of Jewish day-care center”. If the gunman doesn’t succeed in wiping out your institution, maybe the lawyers will: “The parents of a boy who was shot by a white supremacist at a Jewish day-care center have filed a lawsuit claiming the center’s owners failed to provide the necessary security to prevent hate crime attacks.” Buford O. Furrow fired more than 70 shots at the North Valley Jewish Community Center in Los Angeles on Aug. 10, 1999 (AP/CNN, May 1).
May 3 — Update: mills of legal discipline. They grind slow, that’s for sure, but does that mean they grind exceeding fine? A disciplinary panel has ended its investigation of New Hampshire chief justice David Brock, letting him off with an admonishment, in the protracted controversy over the conduct (see April 5 and Oct. 11, 2000) which also led to his impeachment and acquittal in the state senate; Brock’s lawyer had threatened to sue the disciplinary panel if it continued its probe, and a dissenting committee member called that lawsuit-threat “intended to intimidate” (“Threat of lawsuit ended Brock case”, Nashua Telegraph, April 23; Dan Tuohy, “Finding bolsters call for reform”, Foster’s Daily Democrat, April 26). A hearing committee of the District of Columbia Board on Professional Responsibility has recommended that Mark Hager be suspended for three years over the episode [see Feb. 23, 2000] in which he and attorney John Traficonte “began negotiations with [drugmaker] Warner-Lambert to make refunds to consumers, and to pay himself and Hager $225,000 in exchange for which they would abandon their representation, agree to hold the agreement and fee secret from the public and their clients, and promise not to sue Warner-Lambert in the future. Traficonte and Hager accepted the offer without first obtaining the approval of any class member.” The disciplinary committee “found that Hager’s conduct was shockingly outrageous, and that his status as a law professor was a factor in aggravation.” We’ve seen no indication that anyone in the administration of American University’s law school, where Hager continues to teach, has expressed the smallest misgivings about the example that students are supposed to take from his conduct (Denise Ryan, law.com D.C., Board on Professional Responsibility No. 31-98, In re Hager, issued Nov. 30, 2000). (Update Jul. 19, 2003: Hager resigns AU post in April 2003). And off-the-wall Michigan tort lawyer and politician Geoffrey Fieger faces charges before the state attorney grievance commission following reports that he used his radio show to unleash “an obscenity-laced tirade” against three state appeals judges (“Fieger Under Fire For Alleged Swearing Fit”, MSNBC, April 17).
May 3 — “Valley doctors caught in ‘lawsuit war zone'”. A report from the Texas Board of Medical Examiners finds medical malpractice cases approximately tripled in 1999 in Texas’s McAllen-Brownsville region compared with the previous year. Among short-cuts lawyers are accused of employing: suing doctors without an authorization from the client, and hiring as their medical expert a family doctor who charges $500 an hour and has reviewed 700 cases for lawyers, second-guessing the work of such specialists as cardiovascular surgeons, but has not herself (according to an opposing lawyer) had hospital privileges since 1997. (James Pinkerton, Houston Chronicle, March 2 — via Houston CALA). State representative Juan Hinojosa has introduced a bill that would allow doctors and hospitals to countersue lawyers and clients who file suits with reckless disregard as to whether reasonable grounds exist for their action. (“Doctors seek new remedy to fight frivolous lawsuits”, CALA Houston, undated).
May 2 — Suing the coach. “A teenager, who felt she was destined for greatness as a softball player, has filed a $700,000 lawsuit against her former coach, alleging his ‘incorrect’ teaching style ruined her chances for an athletic scholarship. Cheryl Reeves, 19, of Rambler Lane in Levittown, also alleges that her personal pitching coach, Roy Jenderko, of Warminster, not only taught her an illegal style of pitching but also used ‘favorite players’ which resulted in demoralizing the teen. ” (Dave Sommers, “Legal Pitch”, The Trentonian, May 1).
May 2 — Trustbusters sans frontieres. Truly awful idea that surfaced in the press a while back: a bipartisan group of senators led by Sen. Arlen Specter (R-Pa.) say they’re trying to pressure the Bush administration to file an antitrust suit against the Organization of Petroleum Exporting Countries, accusing it of restricting the output of oil in order to raise prices to consumers in countries like ours — which is, of course, OPEC’s reason for existence. “Most antitrust and foreign policy experts interviewed say they cannot imagine a scenario in which such legal action would succeed, or that any president would risk his foreign policy goals for such a lawsuit”, reports the National Law Journal. But even the gesture of inviting unelected judges and unpredictable juries to punish sovereign foreign powers would increase the chances of our landing in a series of confrontations and international incidents that would be at best imperfectly manageable by the nation’s executive branch and diplomatic corps (which cannot, for example, necessarily offer to reverse or suspend court decisions as a bargaining chip).
The United States’s relations with OPEC countries, it will be recalled, have on occasion embroiled us in actual shooting wars, which are bad enough when entered after deliberation on the initiative of those to whom such decisions are entrusted in our system of separation of powers, and would be all the less supportable if brought on us by the doings of some rambunctious judge or indignant jury. Wouldn’t it be simpler for Sen. Specter to just introduce a bill providing that the courts of the United States get to run the world from now on? (Matthew Morrissey, “Senators to Press for Suing OPEC Over Pricing”, National Law Journal, March 1).
May 1 — Columnist-fest. Scourings from our bookmark file:
* Mark Steyn on the Indian residential-school lawsuits that may soon bankrupt leading Canadian churches (see Aug. 23, 2000): (“I’ll give you ‘cultural genocide'”, National Post, April 9). Bonus: Steyn on protectionism, globalization and Quebec City (“Don’t fence me in”, April 19).
* Federalists under fire: there’s a press campaign under way to demonize the Federalist Society, the national organization for libertarian and conservative lawyers and law students. The Society has done a whole lot to advance national understanding of litigation abuses and overuse of the courts — could that be one reason it’s made so many powerful enemies? (Thomas Bray, “Life in the Vast Lane”, OpinionJournal.com, April 17; Marci Hamilton, “Opening Up the Law Schools: Why The Federalist Society Is Invaluable To Robust Debate”, FindLaw Writ, April 25; William Murchison, “In Defense of the Federalist Society”, Dallas Morning News, April 25).
* A Bush misstep: the White House has named drug-war advocate and Weekly Standard contributor John P. Walters as head of the Office of National Drug Control Policy. “Walters, almost alone among those who have spent serious professional time on drug abuse in America, harbors no misgivings over the fact that we’ve been crowding our prisons almost to the bursting point with nonviolent drug offenders.” (William Raspberry, “A Draco of Drugs”, Washington Post, April 30) (Lindesmith Center).
* “Overreaching IP legal teams kick the firm they supposedly represent”: Seth Shulman of Technology Review on the “patented peanut butter sandwich” case (see Jan. 30). (“Owning the Future: PB&J Patent Punch-up”, May). Also: California judge William W. Bedsworth (“Food Fight!”, The Recorder, March 16).
May 18-20 — “Couple sues for doggie damages”. Claiming that their 4-year-old golden retriever Boomer was hurt by an “invisible fence” electronic collar device, Andrew and Alyce Pacher, of Vandalia, Ohio, want to name the dog itself as a plaintiff in the suit. “It’s my opinion that it’s clear dogs cannot sue under Ohio law,” says the fence company’s lawyer. But the Pachers’ attorney, Paul Leonard, a former lieutenant governor and ex-mayor of Dayton, says that’s exactly what he hopes to change: he’s “hoping to upgrade the legal status of dogs in Ohio.” (“Damages for Injuries Caused by Invisible Fence Sought for Dog”, AP/FoxNews.com, May 11).
May 18-20 — “Fortune Magazine Ranks ATLA 5th Most Powerful Lobby”. The business magazine finds that plaintiff’s lawyers have more clout in Washington than the U.S. Chamber of Commerce or the AFL-CIO; more than Hollywood or the doctors or the realtors or the teachers or the bankers. (Fortune, May 28; ATLA jubilates over its rise from 6th to 5th, May 15).
May 18-20 — Batch of reader letters. Our biggest sack of correspondence yet includes a note from a reader wondering if some open-minded attorney would like to help draft a loser-pays initiative for the ballot in Washington state; more about carbonless paper allergies, the effects of swallowing 9mm bullets, the Granicy trial in California, and “consumer columns” that promote lawyers’ services; a link between ergonomics and gun control controversies; and a reader’s dissent on the case of the boy ticketed for jaywalking after being hit by a truck.
May 17 — “Crash lawyers like Boeing move”. Attorneys who sue after midair mishaps are pleased that Boeing is planning to relocate its headquarters to Chicago. They say the courts of Cook County, Ill., hand out much higher verdicts than those of Seattle, the aircraft maker’s former hometown. Some lawyers in fact predict that domestic crashes, at least when the plane is Boeing-made, are apt to be sued in Cook County from now on regardless of where the flight originated or went down; under the liberal rules of forum-shopping that prevail in American courts, most big airlines may be susceptible to venue in the Windy City since they do at least some business there. (Blake Morrison, “Crash lawyers like Boeing move”, USA Today, May 16).
May 17 — Like a hole in the head. As if the nine private law schools in the state of Massachusetts weren’t enough, proponents now want to establish a public one by having the state take over the struggling Southern New England School of Law at North Dartmouth, near New Bedford. (Denise Magnell, “Crash Course”, Boston Law Tribune, May 1).
May 17 — Lessons of shrub-case jailing. The months-long contempt-of-court jailing of John Thoburn of Fairfax County, Va. for refusing to erect enough trees and shrubs around his golf driving range is a good example of the excesses of bureaucratic legalism, says Washington Post columnist Marc Fisher (“In Fairfax shrub fight, Both Sides Dig In Stubbornly”, April 26). Some of the county’s elected supervisors voice few misgivings about the widely publicized showdown, saying their constituents want them to be tougher in cracking down on zoning violations. (Peter Whoriskey and Michael D. Shear, “Fairfax Zoning Case Draws World Attention”, Washington Post, April 21) (freejohnthoburn.com).
May 16 — No baloney. “A suspected drug dealer who was served a bullet-and-bologna sandwich wants a side of lettuce — about $5 million worth. ” Louis Olivo says he was given an officially prepared lunch during a break in a Brooklyn Supreme Court hearing last week, and felt something “crunchy” which turned out to be a bullet. Surgery (not syrup of ipecac?) is expected to remove the 9mm bullet from Olivo’s stomach; his lawyer wants $5 million (Christopher Francescani, “$5M Lawsuit Over Bulletin in Bologna”, New York Post, May 15) (& letter to the editor, May 18)
May 16 — “Who’s afraid of principled judges?” More questions should be raised about a retreat held at Farmington, Pa. earlier this month in which 42 Democratic Senators were lectured on the need to apply ideological litmus tests to judicial nominees, writes Denver Post columnist Al Knight. (May 13). “Liberals rightly decried efforts a decade ago to turn membership in the American Civil Liberties Union into a disqualification for high office; current efforts to do the same thing to the Federalist Society are equally wrong. … In fact, they are the only group, liberal or conservative, that regularly sponsors debates throughout the nation’s law schools on important public-policy issues.” (Howard Shelansky, “Who’s Afraid of the Federalist Society?”, Wall Street Journal, May 15).
May 16 — Drawing pictures of weapons. In Oldsmar, Fla., an eleven-year-old “was taken from his elementary school in handcuffs after his classmates turned him in for drawing pictures of weapons.” (Ed Quioco and Julie Church, “Student removed from class because of drawings”, St. Petersburg Times, May 11; “Pinellas fifth grader cuffed, sent home after classmates turn him in for drawing weapons”, AP/Fort Lauderdale Sun-Sentinel, May 11). In Sunderland, England, police raided Roland Hopper’s 11th birthday party and arrested him as he cut the cake after he was seen playing with the new pellet gun his mother had bought him (“Armed Police Raid 11th Birthday”, Newcastle Journal, April 10). And the website ztnightmares.com, which developed out of a controversy at Lewis-Palmer High School in Monument, Colo., “publicizes the downside or evils of zero tolerance school discipline policies” and has a noteworthy list of outside links as well as horror stories.
May 15 — “Judges or priests?”. Why have judicial nomination fights taken on the intensity and bitterness once associated with religious disputes? “The only places left in this country that could be described as temples — for that is how we treat them — are the courts. … They are temples because the judges who sit in them now constitute a priesthood, an oracular class … we have abdicated to them our personal responsibility and, in many cases, even what used to be the smallest judgment call a citizen had to make for himself.” (Tunku Varadarajan, WSJ OpinionJournal.com, May 11).
May 15 — Techies fear Calif. anti-confidentiality bill. Trial lawyers have been pushing hard for the enactment of legislation granting them wide leeway to disseminate to anyone they please much of the confidential business information they dig up by compulsory process in lawsuits. (At present, judges are free to issue “protective orders” which restrain such dissemination.) Proponents say lawyers will use this new power to publicize serious safety hazards that now remain unaired; critics predict they will use it to stir up more lawsuits and for general leverage against defendants who have been found guilty of no wrong but who don’t want the inner details of their business to fall into the hands of competitors or others. A lawyer-backed bill had been hurtling toward enactment in California following the Firestone debacle, but now a counterforce has emerged in the person of high-tech execs who say the proposal “could expose confidential company information, stifle innovation and encourage frivolous litigation. … TechNet CEO Rick White called the bills ‘the most significant threat to California’s technology companies since Prop. 211.’ White was referring to the 1996 initiative that would have made company directors and high-ranking executives personally vulnerable to shareholder lawsuits.” (Scott Harris, “Old Foes Squabble Over Secrecy Bills”, Industry Standard/Law.com, May 10).
May 15 — Canadian court: divorce settlements never final. The Ontario Court of Appeal has ruled that courts may revisit and overturn former divorce settlements if a “material change of circumstances” has taken place since the original deal. “Tens of thousands of people who believed they had agreed to a ‘final’ divorce settlement could face more financial demands … Family law lawyers predict a surge of legal attacks on separation agreements and marriage contracts as a result of the ruling.” (Cristin Schmitz, “Divorce deals never final: court”, Southam News/National Post, April 28).
May 14 — Write a very clear will. Or else your estate could wind up being fought over endlessly in court like that of musician Jerry Garcia (Kevin Livingston, “Garcia Estate Fight Keeps On Truckin'”, The Recorder, April 25; Steve Silverman, “Online Fans Sing Blues About Garcia Estate Wrangling”, Wired News, Dec. 16, 1996; Don Knapp, “Garcia vs. Garcia in battle for Grateful wealth”, CNN, Dec. 14, 1996). Or actor James Mason (A Star is Born, North by Northwest) (“He would have been horrified by all this. … he hated litigation”) (Caroline Davies, “James Mason’s ashes finally laid to rest”, Daily Telegraph (London), Nov. 25, 2000). Or timber heir H.J. Lutcher Stark of Orange, Texas, who died in 1965 and whose estate, with that of his wives, has spawned several rounds of litigation which look as far back for their subject matter as 1939 and are still in progress (William P. Barrett, “How Lawyers Get Rich”, Forbes, April 2 (reg)).
May 14 — City gun suits: “extortion parading as law”. To curb the use of officially sponsored litigation as a regulatory bludgeon, as in the gun suits, the Cato Institute’s Robert Levy recommends “a ‘government pays’ rule for legal fees when a governmental unit is the losing plaintiff in a civil case”. (Robert A. Levy, “Pistol Whipped: Baseless Lawsuits, Foolish Laws”, Cato Policy Analysis #400 (executive summary links to full paper — PDF))
May 14 — Update: “Messiah” prisoner’s lawsuit dismissed. In a 22-page opinion, federal district judge David M. Lawson has dismissed the lawsuit filed by a Michigan prisoner claiming recognition as the Messiah (see April 30). The opinion contains much to reward the curious reader, such as the list on page 5 of the inmate’s demands (including “5 million breeding pairs of bison” and “25,000 mature breeding pairs of every creature that exists in the State of Michigan,” and the passage on page 18 citing as precedent for dismissal similar previous cases such as Grier v. Reagan (E.D. Pa. Apr. 1, 1986), “finding that plaintiff’s claim she was God of the Universe fantastic and delusional and dismissing as frivolous complaint which sought items ranging from a size sixteen mink coat and diamond jewelry to a three bedroom home in the suburbs and a catered party at the Spectrum in Philadelphia”). (opinion dated April 26 (PDF), Michigan Bar Association site) (DURABLE LINK)
May 11-13 — Welcome Aardvark Daily readers (NZ). “New Zealand’s leading source of Net-Industry news and commentary since 1995” just referred us a whole bunch of antipodal visitors by featuring this website in its “Lighten Up” section. It says we offer “an aggregation of quirky and oddball legal actions which go to prove that the USA has far too many lawyers for its own good”. (Aardvark.co.nz). For NZ-related items on this site, check out July 26, Sept. 8 and Oct. 31, 2000, as well as “Look for the Kiwi Label”, Reason, July 2000, by our editor.
May 11-13 — New York tobacco fees. “An arbitration panel has awarded $625 million in attorneys’ fees to the six firms that were hired by New York state to sue the tobacco industry, say sources close to the arbitration report.” The well-connected city law firm of Schneider, Kleinick, Weitz, Damashek & Shoot (which last year was reported to be renting office space to New York Assembly Speaker Sheldon Silver; see May 1, 2000) will receive $98.4 million. Three firms that took a major national role in the tobacco heist will share $343.8 million from the New York booty, to add to their rich haul from other states; they are Ness Motley, Richard Scruggs’ Mississippi firm, and Seattle’s Hagens & Berman. (Daniel Wise, “Six Firms Split $625 Million in Fees for New York’s Share of Big Tobacco Case,” New York Law Journal, April 24). Update Jun. 21-23, 2002: judge to review ethical questions raised by fee award.
May 11-13 — “Judges behaving badly”. The National Law Journal‘s fourth annual roundup of judicial injudiciousness includes vignettes of jurists pursuing personal vendettas, earning outside income in highly irregular ways, jailing people without findings of guilt, and getting in all sorts of trouble on matters of sex. Then there’s twice-elected Judge Ellis Willard of Sharkey County, Mississippi, who allegedly “fabricated evidence such as docket pages, arrest warrants, faxes [and] officers’ releases.” That was why he got in trouble, not just because he was fond of holding court in his Beaudron Pawn Shop and Tire Center, “a tire warehouse flanked by service bays on one side and a store that holds the judge’s collection of Coca-Cola memorabilia.” (Gail Diane Cox, National Law Journal, April 30).
May 11-13 — Update: Compaq beats glitch suit. In 1999, after Toshiba ponied up more than a billion dollars to settle a class action charging that its laptops had a glitch in their floppy drives, lawyers filed follow-on claims against other laptop makers whose machines they said displayed the same problem. But Compaq refused to settle, and now Beaumont, Tex. federal judge Thad Heartfield has felt constrained to dismiss the suit against it on the grounds that plaintiff’s lawyer Wayne Reaud had failed to show that any user suffered the requisite $5,000 in damages. (Daniel Fisher, “Billion-Dollar Bluff”, Forbes, April 16 (now requires registration)).
May 31 — Fieger’s firecrackers frequently fizzle. Famed lawyer Geoffrey Fieger extracts huge damage awards from Michigan juries in civil cases even more often than he manages to get Dr. Jack Kevorkian off the hook from criminal charges, but he does much less well when the big awards reach higher levels of judicial consideration. “In the last two years, Fieger and his clients have watched as judges, acting on appeal or post-trial motion, erased more than $55 million in jury verdicts,” including $15 million and $13 million verdicts against Detroit-area hospitals and a $30 million verdict, reduced by the judge to $3 million, arising from a Flint highway accident. Opponents say Fieger’s courtroom vilification of opponents and badgering of witnesses often impresses jurors but plays less well in the calmer written medium of an appellate record.
Appeals courts are now considering Fieger cases “totaling an estimated $50 million to $100 million … Among those cases is $25 million awarded in the infamous Jenny Jones talk-show case and $20 million to a woman who was sexually harassed at a Chrysler plant.” (Update Oct. 25-27, 2002: appeals court throws out Jenny Jones verdict. Further update Jul. 24, 2004: state high court throws out Chrysler verdict). Fieger, who was the unsuccessful Democratic challenger to Michigan Gov. John Engler at the last election, charges that the appeals courts are politically biased against him: “It’s a conspiracy to get me”. However, a reporter’s examination of Fieger cases that went up to appeals courts indicates that the partisan or philosophic background of the judges on the panels doesn’t seem to make a marked difference in his likelihood of success (Dawson Bell, “Fieger’s wins lose luster in appeals”, Detroit Free Press, May 29). “Colorful” barely begins to describe Fieger’s past run-ins with the law and with disciplinary authorities; see Dawson Bell, “Fieger’s skeletons won’t stay buried”, Detroit Free Press, August 13, 1998.
May 31 — “Dead teen’s family sues Take our Kids to Work”. Had to happen eventually dept.: in Welland, Ontario, “[t]he family of a teenage girl killed while driving a utility vehicle at a John Deere plant is suing the company, the school board and the organizers of Take Our Kids to Work day.” (Karena Walter, National Post, May 25).
May 31 — Pale Nanny with an ad budget. The Indoor Tanning Association, a salon trade group, is “worried about proposed legislation in Texas that would outlaw indoor tanning for anyone under age 18, require tanning salons to post pictures of different types of skin cancer, and allow dermatologists and anti-tanning activists to make contributions to the Texas Health Department to pay for an anti-tanning advertising campaign.” You didn’t think these sorts of campaigns were going to stop with tobacco, did you? (“Inside Washington — Presenting: This Season’s Latest Tan Lines”, April 14, National Journal, subscribers only).
May 30 — Supreme Court: sure, let judges redefine golf. By a 7-2 vote, the high court rules that the PGA can be forced to change its rules so as to let disabled golfer Casey Martin ride in a cart between holes while other contestants walk. (Yahoo Full Coverage; Christian Science Monitor; PGA Tour v. Martin decision in PDF format — Scalia dissent, which is as usual the good part, begins about two-thirds of the way down). For our take, see Reason, May 1998; disabled-rights sports cases).
May 30 — Microsoft v. Goliath. “The antitrust laws originally aimed to preserve competition as idealized by Adam Smith. Can they now preserve and promote Schumpeter’s [“creative destruction”] competition? The Microsoft case suggests that they cannot. ” (Robert Samuelson, “The Gates of Power”, The New Republic, Apr. 23).
May 30 — Evils of contingent-fee tax collection, cont’d. Another city, this time Meriden, Ct., has gotten in trouble for hiring a private firm to assist in its taxation process on a contingent-fee basis — in this case, the firm conducted property reassessments and got to keep a share of the new tax revenue hauled in by them. A Connecticut judge has now found that this system gave the firm a pointed incentive to inflate supposed property values unjustifiably, that it had done so in the case at hand, and that the incentive scheme, by destroying the impartiality that we expect of public servants, had deprived taxpayers of their rights to due process under both federal and state constitutions. He ordered the city to refund $15.6 million to two utility companies whose holdings had been overassessed in this manner. (Thomas Scheffey, “Connecticut Judge Blasts City’s $15.6 Million Mistake”, Connecticut Law Tribune, May 3). It’s yet another recognition (see Jan. 10, 2001; Dec. 3, 1999) that when governments hire contingent-fee professionals to advise them on whether private parties owe them money and if so how much, due process flies out the window — as has happened routinely in the new tobacco/gun/lead paint class of lawsuits, which operate on precisely this model.
May 29 — Claim: inappropriate object in toothpaste caused heart attack. A Shelton, Ct. man is suing Colgate-Palmolive, claiming he discovered an extremely indelicate object in a six-ounce standup tube of the company’s regular toothpaste and that the resulting stress caused his blood pressure to escalate over a matter of months, leading him to suffer a heart attack a year later. The company said it does not think its production processes would have allowed the offending object to have entered the tube. (“Man sues over condom in toothpaste”, AP/WTNH New Haven, May 25).
May 29 — States lag in curbing junk science. According to one estimate, only about half of state courts presently follow the U.S. Supreme Court’s standard for excluding unreliable scientific evidence from trials (Daubert v. Merrell Dow, 1993). Where states follow a laxer standard, they run the risk of approving verdicts based on strawberry-jam-causes-cancer “junk science”. A new group called the Daubert Council, headed by Charles D. Weller and David B. Graham of Cleveland’s Baker & Hostetler, aims to fix that situation by persuading the laggard states to step up to the federal standard. (Darryl Van Duch, “Group is Pushing ‘Daubert'”, National Law Journal, May 25).
May 29 — Brace for data-disaster suits. Companies with a substantial information technology presence are likely to become the targets of major liability lawsuits in areas such as hacker attacks, computer virus spread, confidentiality breach, and business losses to co-venturers and customers, according to various experts in the field. (Jaikumar Vijayan, “IT security destined for the courtroom”, ComputerWorld, May 21).
May 28 — Holiday special: dispatches from abroad. Today is Memorial Day in the U.S., which we will observe by skipping American news just for today in favor of the news reports that continue to pour in from elsewhere:
* Swan victim Mary Ryan, 71, has lost her $32,600 negligence claim against authorities over an incident in which one of the birds knocked her to the ground in Phoenix Park in central Dublin, Ireland. She testified that she had just fed the swan and was walking away when she heard a great flapping of wings and was knocked down, suffering a broken wrist. “Ryan said park commissioners should have put up signs warning the public about ‘the mischievous propensity and uncertain temperament'” of the birds, but Judge Kevin Haugh ruled that evidence had not established that the park’s swans were menacing in general, although the one in question had concededly been having “a very bad day.” (Reuters/Excite, May 25).
* In Canada, the New Brunswick Court of Appeal has ruled improper the disbarment of Fredericton attorney Michael A.A. Ryan, whom the Law Society had removed from practice after finding that he had lied to clients and falsified work, reports the National Post. To conceal his neglect of cases which had lapsed due to statutes of limitations, “Mr. Ryan gave his clients reports of hearings, motions and discoveries that never occurred, and when pressed for details of a supposedly favourable judgment, forged a decision from the Court of Appeal. The clients were eventually told they had won $20,000 each in damages,” but in the end Ryan had to confess that he had been making it all up. “The lawyer has admitted to a long-standing addiction to drugs and alcohol, and told the court he was depressed during the period of his misconduct because of the breakup of his marriage.” (Jonathon Gatehouse, “Court gives lawyer who lied to clients second chance,” National Post, May 18).
* Authorities in Northumbria, England, have agreed to pay thousands of pounds to Detective Inspector Brian Baker, who blames his nocturnal snoring on excessive inhalation of cannabis (marijuana) dust in the line of police duty. Baker says that his spending four days in a storeroom with the seized plants resulted in nasal congestion, sniffing, dry throat, and impaired sense of smell as well as a snore that led to “marital disharmony”. (Ian Burrell, “Payout for policeman who blamed his snoring on cannabis”, The Independent (U.K.), April 11; Joanna Hale, “Drugs inquiry made detective a snorer”, The Times (U.K.), April 11). And updating an earlier story (see May 22), a woman in Bolton, Lancashire has prevailed in her suit against a stage hypnotist whose presentation caused her to regress to a childlike state and recall memories of abuse; damages were $9,000 (AP/ABC News, May 25).
May 25-27 — “Judge buys shopaholic defense in embezzling”. “A Chicago woman who stole nearly $250,000 from her employer to finance a shopping addiction was spared from prison in a novel ruling Wednesday by a federal judge who found that she bought expensive clothing and jewelry to ‘self-medicate’ her depression.” Elizabeth Roach faced a possible 18-month prison term for the embezzlement under federal sentencing guidelines, but U.S. District Judge Matthew Kennelly reduced her sentence, sparing her the big house, in what was evidently “the first time in the country that a federal judge reduced a defendant’s sentence because of an addiction to shopping.” She had bought a $7,000 belt buckle and run credit-card bills up to $500,000. (Matt O’Connor, Chicago Tribune, May 24).
May 25-27 — Columnist-fest. More reasons to go on reading newspapers:
* A New York legislator has introduced a joint custody bill that he thinks would significantly reduce the state’s volume of child custody litigation, but it hasn’t gone anywhere. Leaving aside debates about the other pros and cons of joint custody, one reason it languishes is that it “has been opposed by matrimonial lawyers in the state. ‘They make their living on these divorces,’ said [assemblyman David] Sidikman, a lawyer himself. “… The parents usually start off these cases promising to be adults, but that doesn’t last once the lawyers get involved.” “(John Tierney, “The Big City: A System for Lawyers, Not Children”, New York Times, May 15 (reg)). Bonus: Tierney on the NIMBY-ists who would sue to keep IKEA from building a store in a blighted Brooklyn neighborhood (“Stray Dogs As a Litigant’s Best Friend”, April 13).
* Steve Chapman points out that the recent release of an Oklahoma man long imprisoned for a rape he didn’t commit (see May 9) casts doubt not only on shoddy forensics but also on that convincing-seeming kind of evidence, eyewitness testimony (“Don’t believe what they say they see”, Chicago Tribune, May 13). Bonus: Chapman on the scandal of medical-pot prohibition (“Sickening policy on medical marijuana”, May 17).
* Reparations: “Germans may be paying for the sins of their fathers but asking Americans to stump up for what great-great-great-grandpappy did seems to be rather stretching a point. ” (Graham Stewart, “Why we simply can’t pay compensation for every stain on our history”, The Times (U.K.), March 22).
May 25-27 — “Gone with the Wind” parody case. The legal status of parody as a defense to copyright infringement is still uncertain in many ways, and contrary to a widespread impression there is no legal doctrine allowing extra latitude in copying material from works such as the Margaret Mitchell novel that have become “cultural icons” (Kim Campbell, “Who’s right?”, Christian Science Monitor, May 24; Ken Paulson, “What — me worry? Judge’s suppression of Gone With the Wind parody raises concerns”, Freedom Forum, May 20).
May 24 — “Family awarded $1 billion in lawsuit”. Another great day for trial lawyers under our remarkable system of unlimited punitive damages: a New Orleans jury has voted to make ExxonMobil pay $1 billion to former state district judge Joseph Grefer and his family because an Exxon contractor that leased land from the family for about thirty years left detectable amounts of radioactivity behind from its industrial activities. Exxon “said it offered to clean up the land but the Grefers declined its offers.” The company says the land could be cleaned up for $46,000 and also “claims that less than 1 percent of the land contains radiation levels above naturally occurring levels.” The jury designated $56 million of the fine for cleaning up the land; the total value of the parcel is somewhere between $500,000 (Exxon’s view) and $1.5 million (the owners). (Sandra Barbier, New Orleans Times-Picayune, May 23; Brett Martel, “Jury: ExxonMobil Should Pay $1.06B”, AP/Yahoo, May 22; “Exxon Mobil to Appeal $1 Billion Fine”, Reuters/New York Times, May 23).
May 24 — Humiliation by litigators as turning point in Clinton affair. “It strikes me as relevant that the turning point in the Lewinsky saga was the broadcasting of Clinton’s deposition, an image of an actual human being humiliated for hours on end. It was then that we realized we had gone too far — but look how far down the path we had already gone.” (Andrew Sullivan, TRB from Washington, “Himself”, The New Republic, May 7).
May 24 — Tobacco: angles on Engle. With three cigarette companies having agreed to pay $700 million just to guarantee their right to appeal a Miami jury’s confiscatory $145 billion verdict in Engle v. R.J. Reynolds, other lawyers are piling on, the latest being an alliance of hyperactive class action lawyers Cohen, Milstein, Hausfeld & Toll with O.J. Simpson defense lawyer Johnnie Cochran (“Lawsuit says tobacco industry tried to hook kids”, CNN/AP, May 23; Jay Weaver, “Tobacco firms agree to historic smoker payment”, Miami Herald, May 8; “Tobacco Companies Vow to Fight $145 Billion Verdict”, American Lawyer Media, July 17, 2000; Rick Bragg with Sarah Kershaw, “”Juror Says a ‘Sense of Mission’ Led to Huge Tobacco Damages”, New York Times, July 16, 2000 (reg); “Borrowing power to be considered in tobacco suit”, AP/Seattle Post-Intelligencer, June 1, 2000 (judge ruled that companies’ ability to borrow money could be used as a predicate for quantum of punitive damages)).
May 23 — “Insect lawyer ad creates buzz”. Torys, a large law firm based in Toronto, has caused a stir by running a recruitment ad aimed at student lawyers with pictures of weasels, rats, vultures, scorpions, cockroaches, snakes and piranhas, all under the headline “Lawyers we didn’t hire.” The ad, devised by Ogilvy and Mather, says the firm benefits from a “uniquely pleasant and collegial atmosphere” because it doesn’t hire “bullies, office politicians or toadies”, who presumably go to work for other law firms instead.
However, some defenders of invertebrates and other low-status fauna say it’s unfair to keep comparing them to members of the legal profession. Vultures, for example, “provide a really essential role in terms of removing dead animals and diseases,” says Ontario zoologist Rob Foster. “It’s slander, frankly,” he says, “adding that one exception might be the burbot, a bottom-feeding fish whose common names include ‘the lawyer.’ … ‘Whenever I see a dung beetle portrayed negatively in a commercial, I see red,’ he said yesterday, recalling that in The Far Side comic strip, cartoonist Gary Larson once drew two vermin hurling insults by calling each other ‘lawyer.'” (Tracey Tyler, Toronto Star, Apr. 19). (DURABLE LINK)
May 23 — “Working” for whom? An outfit called the Environmental Working Group has recently taken a much higher profile through its close association with “Trade Secrets”, a trial-lawyer-sourced (and, say its critics, egregiously one-sided) attack on the chemical industry that aired March 26 as a Bill Moyers special on PBS. Spotted around the same time was the following ad which ran on one of the FindLaw email services on behalf of EWG: “Thought the Cigarette Papers Were Big? 50 years of internal Chemical Industry documents including thousands of industry meeting minutes, memos, and letters. All searchable online. Everything you need to build a case at http://www.ewg.org“. Hmmm … isn’t PBS supposed to avoid letting itself be used to promote commercial endeavors, such as litigation? (more on trial lawyer sway among environmental groups)
MORE: Michael Fumento, “Bill Moyers’ Bad Chemistry”, Washington Times, April 13; PBS “TradeSecrets”; Steven Milloy, “Anti-chemical Activists And Their New Clothes”, FoxNews.com, March 30; www.AboutTradeSecrets.org (chemical industry response); ComeClean.org; Ronald Bailey, “Synthetic Chemicals and Bill Moyers”, Reason Online, March 28. The New York Times‘s Neil Genzlinger wrote a less than fully enthralled review of the Moyers special (“‘Trade Secrets’: Rendering a Guilty Verdict on Corporate America”, television review, March 26) for which indiscretion abuse was soon raining down on his head from various quarters, including the leftist Nation (“The Times v. Moyers” (editorial), April 16). (DURABLE LINK)
May 22 — From dinner party to court. “I’m never going to invite people around for dinner again,” says Annette Martin of Kingsdown, Wiltshire, England, after being served with a notice of claim for personal injury from dinner guest Margaret Stewart, who says she was hurt when she fell through a glass and steel dining chair in Miss Martin’s home. Martin says that “up to then we had been good friends,” and that Miss Stewart “looked perfectly fine when she walked out the door that evening. … I feel very strongly about the television adverts that encourage this sort of nonsense. I think the Government should intervene before we become like the Americans and sue over anything.” (Richard Savill, “Dinner party ends with a sting in the tail”, Daily Telegraph, May 19). In other U.K. news, a woman from Bolton, Lancashire, is suing stage hypnotist Philip Green, claiming that during one of his performances “she was induced to chase what she believed were fairies around the hall, drink a glass of cider believing it was water and believe she was in love with Mr. Green,” all of which left her depressed and even for a time suicidal, calling up memories of childhood abuse. (“Woman sues stage hypnotist over ‘abuse memories'”, Ananova.com, May 21) (more on hypnotist liability: March 13). UpdateMay 28: she wins case and $9,000 damages.
May 22 — Razorfish, Cisco, IPO suits. In a decision scathingly critical of the “lawyer-driven” nature of securities class action suits, New York federal judge Jed Rakoff rejected a motion by five law firms to install a group of investors as the lead plaintiff in shareholder lawsuits against Razorfish Inc., a Web design and consulting company. The investor group had been “cobbled together” for purposes of getting their lawyers into the driver’s seat, he suggested. “Here, as in many other such cases, most of the counsel who filed the original complaints attempted before filing the instant motions to reach a private agreement as to who would be put forth as lead plaintiff and lead counsel and how fees would be divided among all such counsel.” Rakoff instead installed as lead counsel Milberg Weiss and another firm, which jointly represented the largest investor claiming losses in the action. “Judge Rakoff noted drily in a footnote that numerous complaints were filed within days that essentially copied the original Milberg Weiss complaint verbatim,” and wondered whether the lawyers filing those copycat suits had taken into account the requirements of federal Rule 11. (Bruce Balestier, “Judge Rejects Lawyers’ Choice of Lead Plaintiff in Razorfish Class Actions”, New York Law Journal, May 8).
Observers are closely watching the onslaught of class action suits filed against Cisco Systems since its stock price declined. Stanford securities-law professor Joseph Grundfest, who “helped craft the 1995 reform act and has worked on both plaintiffs-side and defense cases … said he sees the Cisco case as part of a buckshot strategy by plaintiffs’ lawyers. They are suing multiple technology companies with hopes of extracting a large settlement from at least one. ‘They only need a small probability to make it worth their while,’ Grundfest said. ‘How much does it cost to write a complaint?'”. (Renee Deger, “Cisco Inferno”, The Recorder, April 27). Shareholder suits in federal court are headed toward record numbers this year in the wake of the dotcom meltdown (Daniel F. DeLong, “Lawyers Find Profit in Dot-Com Disasters”, Yahoo/ NewsFactor.com, May 14; see also Richard Williamson, “Shareholder Suits Slam High-Tech”, Interactive Week/ZDNet, Dec. 19, 2000).
May 22 — Welcome SmarterTimes readers. Ira Stoll’s daily commentary on the New York Times mentioned us on Sunday (May 20 — scroll to first “Late Again”). And Brill’s Content has now put online its “Best of the Web” roundtable in which we were recommended by federal appeals judge Alex Kozinski (May — scroll about halfway down righthand column).
May 21– Six-hour police standoff no grounds for loss of job, says employee. “A formerly suicidal insurance executive who lost his job after a six-hour standoff with police at Park Meadows mall [in Denver] is suing his former employer for discrimination under federal and state laws protecting the mentally disabled. The 43-year-old plaintiff, Richard M. Young, alleges he was wrongfully terminated from Ohio Casualty Insurance Co. after the company interpreted a suicide note he wrote to be his letter of resignation. … The civil complaint says Young was on emergency medical leave for an emotional breakdown May 29, 2000, when he drove to the shopping center’s parking garage and was spotted on mall security cameras with a revolver. … Douglas County sheriff’s deputies finally coaxed him into surrendering”. His suit seeks back pay, front pay and punitive damages. (John Accola, “Man who was suicidal sues ex-employer for discrimination”, Rocky Mountain News, May 18). (DURABLE LINK)
May 21 — “Anonymity takes a D.C. hit”. If Rep. Felix Grucci has his way, you won’t be able to duck into a library while on the road to check your Hotmail; the New York Republican has “introduced legislation requiring schools and libraries receiving federal funds to block access from their computers to anonymous Web browsing or e-mail services. … Grucci says it’s necessary to thwart the usual suspects, terrorists and child molesters.” (Declan McCullagh, Wired News, May 19). And did you know that it would be unlawful to put out this website in Italy without registering with the government and paying a fee? New regulations in that country are extending to web publishers an appalling-enough-already set of rules that require print journalists to register with the government. Says the head of the Italian journalists’ union approvingly: “Thus ends, at least in Italy, the absurd anarchy that permits anyone to publish online without standards and without restrictions, and guarantees to the consumer minimum standards of quality in all information content, for the first time including electronic media.” (Declan McCullagh’s politechbot, “Italy reportedly requires news sites to register, pay fees”, April 11; “More on Italy requiring news sites to register, pay fees”, April 12) (via Virginia Postrel’s “The Scene”, posted there May 6). (DURABLE LINK)
May 21 — “Patients’ rights” roundup. Well, duh: “Doctors supporting patients’ rights bills have suddenly become alarmed that some of the proposals could boomerang and expose them to new lawsuits.” (Robert Pear, “Doctors Fear Consequences of Proposals on Liability”, New York Times, May 6 (reg)). “Consumers do not consider the right to sue health insurers over coverage issues a top healthcare priority, according to new survey data released by the Blue Cross and Blue Shield Association (BCBSA),” which is of course an interested party in the matter; a right to sue “finished last among 21 major health issues that consumers were asked to rank.” (Karen Pallarito, “Poll: Right to sue HMOs low priority for consumers,” Reuters Health, April 26 (text) (survey data — PDF)). And if liability is to be expanded at all, Congress should consider incorporating into the scheme the “early offers” idea developed by University of Virginia law professor Jeffrey O’Connell, which is aimed at providing incentives for insurers to make, and claimants to accept, reasonable settlements at an early stage in the dispute (John Hoff, “A Better Patients’ Bill of Rights,” National Center for Policy Analysis Brief Analysis No. 355, April 19). (DURABLE LINK)
MORE: Greg Scandlen, “Legislative Malpractice: Misdiagnosing Patients’ Rights”, Cato Briefing Papers, April 7, 2000 (executive summary) (full paper — PDF); Gregg Easterbrook, “Managing Fine”, The New Republic, March 20, 2000.
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).
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).
August 31 — Death by mainstreaming. Had safety been the primary concern, Joshua Smurphat of Sunnyvale, Calif., 12 years old and mentally retarded, would probably not have been allowed onto the Drop Zone Stunt Tower ride from which he fell to his death August 22 at the Great America amusement park in Santa Clara. Mechanical failure has been ruled out, and ride designers say that once patrons have been strapped in, it’s physically impossible for them to fall out — provided they obey instructions to remain in their original posture. Even if Joshua’s harness was insecurely fastened, a possibility investigators are still checking into, an ordinary 12-year-old would be apt to notice the problem, but as Jeffrey Lewis, a director of the local United Cerebral Palsy organization, cautions: “in many cases, a consequence of mental retardation is the lack of danger awareness.”
However, both the federal Americans with Disabilities Act (ADA) and California disabled-rights law prohibit amusement parks from “discriminating” against persons with mental incapacities by turning them away from rides, or attaching special preconditions to their participation, so long as they meet otherwise applicable requirements such as height and chronological age. “Certainly they couldn’t say that somebody who had a cognitive disability couldn’t participate in a ride,” Sacramento disabled-rights attorney Eric Gelber told the San Jose Mercury-News, apparently well pleased with that result. “We take our obligation to accommodate all of our guests, regardless of disability, very seriously,” said a park spokesman, in what might serve as an epitaph for the unfortunate young man. (Aug. 26; related follow-up, Aug. 28; links now dead).
August 31 — New Overlawyered.com page: Unsafe on any docket. “Crashworthiness” cases have made big headlines this summer, with two California juries voting awards of $5 billion against GM (Chevy Malibu) and $290 million against Ford (Bronco) and the Massachusetts high court upholding a $19.2 million verdict against Chrysler for a Plymouth minivan accident that the plaintiffs blamed on brake locking. We’ve accordingly devoted the ninth in our series of topical surveys to the area, assembling some historical background and links about the Audi 5000 and its supposed penchant for sudden acceleration, the 1993 episode in which Dateline NBC producers got caught practicing what you might call sure-fire journalism, and similar controversies, not neglecting the case that litigation advocates would much prefer to talk about, that of the Ford Pinto.
August 31 — The “we sue Microsoft” business plan. A Bridgeport, Connecticut jury on July 17 returned a verdict in favor of Microsoft in a private antitrust suit brought by a small company named Bristol Technologies. Interviews afterward indicated that jurors had been angered by internal Bristol emails and memos revealing the smaller company’s not-exactly-reluctant attitude toward litigation. A May 1998 message from a company director to Bristol chief executive Keith Blackwell referred to the approaching lawsuit as “the ‘We sue Microsoft for money’ business plan.” Meanwhile, “[a] memo from a Manhattan public relations firm hired by Bristol described a $75,000-plus ‘David v. Goliath Strategic Communications Game Plan’ to attack Microsoft in the press,” reports Karen Donovan in the August 2 National Law Journal. “Then came an e-mail from Keith’s wife, Jean, days after the suit was filed in August. Its subject: ‘Extend the Story, Increase the Pain.'” “The whole scenario was kind of disgusting,” said juror Robert LaBella of Stamford (followup — Thomas Scheffey, “Microsoft, Bristol and Money”, Connecticut Law Tribune, Aug. 23). Update Nov. 30, 2000: judge increases verdict to $1 million, Bristol requests new trial.
August 30 — Do as we say (I). Latest employer to face a big class action under the antediluvian Fair Labor Standards Act for not paying overtime to some of its highly responsible employees (lawyers, in this case): the U.S. Department of Justice. (San Jose Mercury-News, Aug. 25; AP/Mpls. Star-Tribune, Aug. 26). Don’t miss the Detroit News editorial (Aug. 28). Update Jul. 18, 2004: court rejects case.
August 30 — Do as we say (II): gun-suit hypocrisy in Detroit. The Motor City’s police chief confirmed last week that just before suing private gun makers for allegedly not doing enough to curb distribution of their wares, the city itself sold an astounding 13-plus tons of used police weapons to a private dealer. That puts Detroit ahead of even New Orleans and Boston (see Aug. 25 entry, below), in the tonnage and perhaps also the hypocrisy competition when it comes to weapons distribution. Should the city be liable each time one of those surplus guns gets used for a criminal or suicidal purpose? (Detroit Free Press, Aug. 25).
Since its filing, letters to the editor from local residents have flayed Detroit’s gun suit for “holding an innocent party responsible for someone else’s criminal activity” and have suggested that, if the city is going to endorse that sort of logic, “victims of crime in the city of Detroit should file suit against the city for its failure to protect those in the city” (Free Press letters, Jan. 8, May 1). More than one letter-writer has suggested, by way of trying to come up with a reduction to absurdity, that the logical culmination would be to hold Detroit’s own hometown industry, the automakers, liable for the activities of drunk drivers. But as July’s Chevy Malibu verdict shows (see August 27, below, and July 10) that’s exactly what the trial lawyers are already doing with considerable success. It’s not easy to think up a reduction to absurdity of our litigation system that isn’t already well on its way to being implemented in all seriousness.
August 30 — “Tort reform spurs lawsuit filings”. Alabama courthouses work overtime as lawyers file suits in droves to beat the deadline for the application of legislated limits to punitive damages and forum-shopping (Huntsville Times, Aug. 24).
August 30 — Taco Bell not liable for Ganges purification pilgrimage. A judge in Lancaster County, Nebraska has declined to order the Taco Bell restaurant chain to pay for trips to India for Siva Rama Krishna Valluru and his wife, Sailaja. Devout vegetarians as part of their practice of Hinduism, the couple was dismayed to discover that a rice side dish they had been eating contained meat. They had argued that swallowing flesh constituted a sin the expiation of which required them to bathe in the Ganges River as part of a purification ritual, but Judge Jean Lovell said such expenses did not count as reasonably foreseeable (Lincoln, Neb. Journal-Star, Aug. 27; AP/Bergen County, N.J. Record, Aug. 28).
August 30 — “Scholar’s shift in thinking angers liberals”. Harvard’s Laurence Tribe upsets colleagues by concluding that the Constitution’s Second Amendment may not, after all, be a meaningless inkblot. Instead he “posits that it includes an individual right, ‘admittedly of uncertain scope,’ to ‘possess and use firearms in the defense of themselves and their homes.” Heresy! (Tony Mauro, USA Today, Aug. 27).
August 28-29 — Speech police go after opinion articles, editorial cartoons. Columnist Stephen Chapman writes that the faculty union at Daley College was recently hauled before the city of Chicago’s Commission on Human Relations, which has the power to levy fines and issue injunctions. Its sin? Publishing an article critical of affirmative action in its newsletter. The college’s Board of Trustees, which filed the complaint, accused the author of the offending piece, Prof. James Bell, of jeopardizing “the rights of students and staff at Daley to equal access” by “mak[ing] students uncomfortable in an institution where comfort is essential for learning.” In June, after two years, the commission finally dismissed the complaint on the grounds that Daley College was not a “public accommodation”. Also in June, however, Chapman reports, the Department of Human Rights in St. Paul, Minn., filed a complaint against the local newspaper accusing it of racial discrimination for having run an editorial cartoon on college athletics that offended many local blacks. After a public outcry, it backed off (St. Paul Pioneer Press, June 10; AP/Freedom Forum, Jun. 23). Chapman quotes UCLA law professor Eugene Volokh warning that such complaints are only too logical a consequence of today’s “hostile-environment” law, a topic on which Volokh maintains a highly informative website. (column link now dead)
August 28-29 — Weekend reading. Pixels to take out on the canoe or Airstream:
* What goes around comes around: the estate of the famously litigious inventor Jerome Lemelson gets hit with a suit from his former employer saying that it actually owns the rights to many of his patents. Critics accused the late Mr. Lemelson of specializing in “submarine” patents whose applications would lie dormant in the Patent Office for years, then suddenly surface when other companies had made progress on the technology in question. (Victoria Slind-Flor, National Law Journal, August 24; see also lemelsonpatents.com, a website put up by lawyers who’ve tangled with the Lemelson estate.)
* “Why, why, would the American Bar Association honor a scandalous leader who has just been found in contempt of court, and whose disbarment is being considered even now?” Or Webster Hubbell, convicted of stealing from his clients? “What kind of advertisement for the profession of law is that?…[Y]ou can’t embarrass an honest profession. Seduced by the glitz of high office and maybe its own partisan prejudices, the bar got what it deserved” — Paul Greenberg, Arkansas Democrat-Gazette (full column). Meanwhile, Judge Richard Posner’s An Affair of State: The Investigation, Impeachment, and Trial of President Clinton sounds like the book to read in the coming month, to judge from reviews by Stuart Taylor Jr. (National Journal) and James Stewart (New York Observer).
* Time for social conservatives to get off their coercive, government-infatuated Culture War kick: “The problem with cultural conservatism is that it despairs not of culture, but humanity. Its votaries consider us all a bunch of suggestible imbeciles, and they view capitalism as a scam…As it turns out, though, people are pretty reasonable….We’re not in danger of ‘an accelerating descent into barbarism and the destruction, sooner or later, of free society itself.’ …Censorship merely would bollix things up by inviting censors to abuse power and everyone else to become dependent and lazy.” — columnist and Fox News host Tony Snow (link now dead).
August 27 — L.A. judge cuts award against GM to $1.2 billion. From the automaker’s motion for a new trial, we finally learn what the other driver’s name was (Moreno), how drunk he was (“.20 several hours later”), and what happened after the plaintiff’s lawyers succeeded in getting the judge to exclude from the trial any mention of Moreno’s intoxication or the fact that he’d been convicted and imprisoned for felony drunk driving over this crash (“Having moved to exclude it, plaintiffs told the jury, falsely, that his guilt consisted of ‘five seconds of bad judgment’,” whereupon the jury allocated to Moreno only 5 percent of the guilt for the injuries) (GM statement) (earlier Overlawyered.com commentary)(auto-safety litigation generally).
Plaintiffs also successfully fought to exclude evidence that the federal government’s real-world highway statistics show the Malibu among the safest cars of its time in crashes, and that testing had raised safety concerns about the alternate placement of the gas tank sought by the plaintiffs. Reuters now quotes GM as saying that 98 percent of American cars in the 1970s had their gas tanks in the same position as the Malibu’s. (“Judge Tells GM To Pay Record $1.2 Bln Liability”, link now dead). The company also says (Wall Street Journal news report today by Frederic Biddle, online subscribers only) that “there was absolutely no difference in cost” between the two designs.
While Reuters (link now dead) fairly summarizes many of the above facts, you’re in trouble if your local paper relies on the Associated Press. AP correspondent David Germain’s dispatches make it hard to figure out why GM thinks it has a case, merely depicting the automaker as trying to “be let off the hook” (link now dead) and quoting plaintiff’s attorney Brian Panish as saying, of the gas tanks, that “[t]he only people in the whole world who think they’re safe are General Motors and their lawyers” (link now dead), a temptingly checkable assertion left unchecked. Incidentally, Yahoo features Overlawyered.com‘s July 10 commentary as a resource in its Full Coverage feature on the case.
August 27 — Best little forum-shopping in Texas. Two more stories illustrate why lawyers appreciate the Lone Star State for a kind of shopping not found at Neiman-Marcus. Mark Ballard in the National Law Journal relates how plaintiffs have brought a long succession of high-stakes cases to sleepy Texarkana, Texas “for only one reason: Judge David Folsom. The 52-year-old Clinton appointee is the only federal judge in Texarkana. Thus, every suit filed here goes before him.” Find a local resident or institution to stand in as your named plaintiff, and you’re home free: Folsom says he can’t recall ever granting a change of venue, though they’re often requested by defendants who wonder why they’ve been dragged to rural northeast Texas when neither they nor the subject matter of the litigation have any particular connection to that part of the world. An old pal of Bill Clinton’s from Arkansas days, Folsom presided over the $17.3 billion settlement of Texas’s Medicaid class action against the tobacco industry. That case certainly pepped up the local economy: the Texarkana Chamber of Commerce estimates that tobacco lawyers and their staffs spent $6.1 million during the proceedings. (Aug. 26).
Meanwhile, lawyers have obtained a $30 million settlement in a Mexican bus-crash case, much more than what such a case would have brought if filed in Mexico, because they were able to find a Texas judge willing to impose not only a Texas forum but also Texas law. (To get some idea of the asymmetries involved, imagine a Mexican court applying that country’s law to a Texas accident.) AP quotes the plaintiff’s lawyer as openly boasting of having foiled the Mexican legal system’s duly considered policy of not handing out money as readily as ours does. The presumption of those other countries, thinking they can apply their law to accidents on their roads! (AP/Washington Post, Aug. 16; Texas Lawyer, Aug. 23).
August 27 — Company to settle 36,000-plus Norplant suits. The Dallas Morning News reports that American Home Products has agreed to pay what could exceed $50 million to buy partial repose (some suits will remain) from lawyers suing it over the silicone-implant contraceptive. The per-claimant sums aren’t very large ($1,500), but nuisance value multiplied by 36,000 gets into substantial money. For more details, see our August 11 commentary and today’s lead editorial in the Wall Street Journal (online to subscribers only). (Dallas Morning News, Aug. 26; Yahoo/Reuters).
August 26 — Playing rough in Alabama. Last week a Mobile grand jury indicted former Alabama Trial Lawyers Association president Garve Ivey Jr., of Jasper, and a private investigator who has worked with Ivey, Wes Chappell, on charges of bribery, witness tampering and criminal defamation. The charges arise from an episode last year in which a former prostitute named Melissa Myers stepped forward to accuse Republican lieutenant governor candidate Steve Windom of raping her. Windom was elected anyway, Myers’s story soon fell apart, and she began cooperating with authorities looking into the question of whether she had been backed by others in making the allegations. Windom had come under heavy fire from organized trial lawyers for having taken a leading role in support of tort reform; in Alabama, as in other Southern states, the lieutenant governor’s position is a powerful one in blocking or approving legislation. Ivey and Chappell deny the charges and say they look forward to their day in court, and Ivey has sued Windom personally as well: “We are filing our lawsuit in Walker County, my home, not Mobile.” (“Ivey refuses to testify before grand jury”, AP/Daily Mountain Eagle (Jasper, Al.), Oct. 21, 1998; John M. Sandlin, “Ivey sues Windom, indictment reported in Mobile”, Daily Mountain Eagle, Aug. 17; AP/Washington Post, Aug. 19) (see update Sept. 1). Update: a jury in June 2000 acquitted Chappell, acquitted Ivey of the felony bribery charge, and convicted Ivey of the two misdemeanor counts of witness tampering and criminal defamation; appeal planned (see Aug. 31, 2000). Further update: in July 2001 the Alabama Supreme Court reversed these convictions and ordered Ivey acquitted of the charges (see July 7, 2001).
August 26 — Rolling the dice. With Ralph Nader on the warpath against the gambling industry, can the lawsuits be far behind? Wait a minute — here they are! David Rovella in the August 2 National Law Journal reports that class action lawyers in Alabama and Wisconsin have filed suit against credit card companies for allowing their customers to run up debts at offshore Internet casinos. David T. Maple of Birmingham, Ala. lost $49.95 at one such game site but stands to recover a lot more than that as “name plaintiff”, which might mean he is off to a profitable betting career after all. Lawyers say they are hoping to recover billions of dollars in refunds, interest “and even damages” (full story). In a policy analysis for the Cato Institute, Chapman University School of Law assistant professor Tom W. Bell calls Internet gambling “Popular, Inexorable, and (Eventually) Legal“.
August 26 — New feature debuts on Overlawyered.com site. Today marks the launch of our fledgling library of online articles, originally published elsewhere and now reprinted by permission of their authors, discussing some of the problems of the U.S. legal system. The opening line-up includes 28 articles by Michael Fumento, Peter Huber, Jonathan Rauch and Overlawyered.com editor Walter Olson on topics ranging from employment law to medical malpractice litigation, from toxic-tort scares to free speech. We expect to add more authors and articles in the weeks ahead.
August 25 — Gun-suit hypocrisy, Boston style. Last week officials admitted that they failed to follow their own procedures when they disposed of surplus police guns with no strings attached, which leaves the city resembling a Rum-denouncing cleric caught bootlegging on the side, given that it’s suing gun makers for not making an effort to control what happened after guns left their hands (see July 14). “Somebody dropped the ball,” acknowledged Police Commissioner Paul Evans. Why not just end the embarrassment by dropping the suit? (Boston Globe, Aug. 17; link now dead)
August 25 — Calif. state bar improperly spent dues on politicking. The Pacific Legal Foundation had brought suit on behalf of 40 members of the bar in the Golden State. In the 1990 case of Keller v. State Bar, the U.S. Supreme Court unanimously ruled that state bars with compulsory membership must offer a refund to members of moneys spent on politicking to which they object. The California bar proceeded to announce that of the $450.00 dues it charged in 1989, a bare $3.00 was spent on ideological and political activities, a figure it arrived at by designating much of its Washington and Sacramento legislative effort as merely one of “advising” lawmakers which bills to pass. We don’t think so, rules Sacramento County superior court judge Morrison England Jr. after eight years of litigation (AP/Freedom Forum; Aug. 20).
August 25 — Lawyers grabbing too much of Swiss bank settlement, charge Holocaust survivors. Yes, it’s one of the sadder headlines of 1999, and no, it’s not one of the more surprising to many who’ve followed the issue. “Gizella Weisshaus, one of the first to sue the banks, said she no longer wanted to be associated with the lawsuit because it would leave too little money for survivors.” (AP: Washington Post, CNN (links now dead)).
August 25 — “Employee lawsuits increasing”. Survey of 353 companies by Society for Human Resource Management and law firm of Jackson Lewis finds slightly more than half have faced employment-related lawsuits, with nine of ten suits coming from former employees. “Another 37 percent of the companies responding to the survey were sued by a current employee, while 8 percent were sued by unsuccessful candidates for employment.” Partner George Wilkins of Cincinnati’s Dinsmore & Shohl says labor and employment is the fastest growing area at his firm. (John Eckberg, Cincinnati Enquirer, August 22; SHRM June 27 press release)
August 24 — The dream verdict. On July 12, three days after a Los Angeles jury voted $5 billion against GM in the Malibu case, a jury in Ceres, Ca. voted $290 million against Ford in a case where several members of Juan Romo’s family had been killed in a rollover accident in their Ford Bronco. Ford’s motion for a new trial, filed last week, sheds light on how such cases are tried in today’s American courtroom.
Plaintiff’s counsel had railed against the “giant,” “wealthy” Ford with its “lawyers back east in Dearborn.” (“I talked about this case was about…corporate greed and arrogance…It’s also about this. It’s about Mrs. Romo’s purse….She didn’t have furniture for crying out loud, and she’s giving money to the church and she’s putting it [in her purse] to provide for the education of her children.” Damages? “You’ve got to say a number that gets on the front page of every newspaper in the country.”
How to deal with the inconvenient circumstance that the Bronco design more than exceeded the standards set by the National Highway Traffic Safety Administration? Keep hammering away at the idea that federal standard-setting (presumably in contrast to jury persuasion) is a “political” process (“that political report called the Federal Register”; “NHTSA has…political appointees”; “You got a reading from a Federal Register as it goes out to the politicians.”)
California law allows affidavits to be taken from jurors after a verdict. According to Ford’s motion, these affidavits revealed that one of the jurors acknowledged she had prejudged the case and told fellow jurors they did not have to follow legal instructions because the case allowed them to “save the babies”. Of one attorney, she said he “really was trying to do something good, and that what he said should be considered as evidence.” And, several jurors testified, the same juror told them at great length about a gruesomely detailed dream she’d had — which she described, not without mystical overtones, as an “omen” — in which a Bronco repeatedly rolled over and killed all the jurors’ children, while the company’s line-up of attorneys and witnesses — armed with guns, no less — “stood by taunting the jurors by chanting ‘Where’s the proof, where’s the proof?’”
The juror affidavits also suggested that the panel was strongly influenced by crash exposés that had aired on “60 Minutes” and similar programs, attacking other Ford models that trial lawyers were suing over, which a second juror saw as proving that Ford had acted in bad faith in such cases. One of these shows, watched by more than one juror, was aired by CBS on May 19, only weeks before the verdict, and included material prejudicial to Ford that the court had excluded from evidence in the Romo case. The apparent influence of the TV coverage helps explain why trial lawyers have gone to such extraordinary lengths over the years, behind the scenes, to shape the coverage on such shows.
After the trial, Ford says, while it was in the process of interviewing jurors to gather affidavits in connection with this new trial motion, plaintiff’s lawyer Larry Drivon was thoughtful enough to send the jurors a free gift, consisting of his own book inveighing against big business (“The Civil War on Consumer Rights“), which happened to feature a whole chapter devoted to attacking none other than the Ford Motor Company. Included was a note and personal inscription to the jurors: “for all us who care.” Update Aug. 27, 2002: appeals court reinstates verdict, Ford seeks review by California high court. More developments; further update Nov. 26, 2003 (appeals court reduces verdict in light of U.S. Supreme Court guidance).
August 24 — Beyond the hired-gun syndrome. Good op-ed in Sunday’s (8/22) Washington Post by David L. Faigman of Hastings College of the Law discussing the Court Appointed Scientific Experts project of the American Association for the Advancement of Science (AAAS). Faigman’s book “Legal Alchemy: The Use and Misuse of Science in the Law” will be published in October by W.H. Freeman & Co.
August 23 — Fertilizer manufacturers not liable for World Trade Center bombing. The Third Circuit U.S. Court of Appeals has upheld the dismissal of a suit by the Port Authority of New York and New Jersey, which had demanded that manufacturers be made to pay damages for the 1993 terrorist bombing of the twin Manhattan towers on the grounds that the misuse of their wares to make fertilizer-and-fuel-oil bombs was “objectively foreseeable”. The appeals court found the lower court had correctly ruled that the manufacturers’ conduct could never be the “proximate cause” of the bombing: “The terrorists’ actions were superseding and intervening events breaking the chain of causation,” writes Judge Jane Roth. If applied consistently, such logic could be helpful to other manufacturers sued over criminal misuse of their products, such as gun makers. Also rejected was a theory that the fertilizer companies were negligent for not having instituted “know-your-customer” controls on buyers of their product — again, an issue that finds its parallel in the gun litigation. (Legal Intelligencer, Aug. 19) A press communiqué (link now dead) from the clearly bewildered government of Norway describes how two of that country’s leading industrial companies became defendants in the World Trade Center litigation, referring to “the Americans’ so-called product liability law”.
August 23 — You may already not be a winner. A Canadian court has turned away prisoner Allen Crawshaw’s lawsuit asking $10,000 of Corrections Canada for failing to mail his entry last year to the Reader’s Digest sweepstakes, which had a first prize of $1.4 million. Prison officials conceded they should have mailed the entry but denied that the loss of a chance of winning should entitle him to damages: “Did you ever see the odds of those?” said spokesman Dennis Finlay. Crawshaw, a former shop steward for the United Food and Commercial Workers at a British Columbia food plant, was convicted in 1994 of killing his boss after being angered by a one-day suspension over heated comments he’d made criticizing management; Crawshaw was “known [locally] as a peace activist”. (National Post, Aug. 11)
August 23 — Political Site of the Day. We’re pleased to announce that Overlawyered.com is today’s Political Site of the Day, an award service that has been picking daily sites for more than four years, practically as long as there’s been an Internet. A stroll through PSoD’s library of past sites is a good way to appreciate the spectacular diversity of the Net: within the space of two weeks we ran into the home sites of the Serbian/Yugoslavian royal family, PostalWatch (a watchdog group on behalf of those regulated by the Postal Service), How To Win a High School Election (“It doesn’t matter whether you’re popular or not…”), and Libertarian Rock, which will send you free stickers to protest curfew laws.
August 23 — “Beating up on ‘deadbeat dads’.” “Those who decry judicial tyranny and family destruction should pay more attention to family courts, for they are the arm of the state that routinely reaches farthest into the private lives of individuals and families,” notes Howard University political scientist Stephen Baskerville in an American Spectator article sharply correcting the usual let’s-lynch-’em view of “deadbeat dads”. The night after Bobby Sherrill came home from spending five months as an Iraqi hostage, the Washington Times reported, the sheriff was there to arrest him for not paying child support during his captivity. A Texas janitor wrongfully convicted of murder and then exonerated after ten years on death row was presented on release with a $50,000 bill for child support he didn’t pay while in prison.
Officials push through ever-more-punitive regulations against delinquent pops, then hop over to for-profit private collection firms, hired by their former agencies, that grow fat on the resulting business. It’s hard to go along with Baskerville in dubbing the deadbeat-dads problem a mere “myth”, but hard not to join him in worrying about “mass incarcerations without trial, charge, or counsel; an apparat that has systematized the invasion of private homes and the confiscation of children to a bureaucratic routine; [and] political leaders [who use] their public office as a platform to vilify private citizens who have been convicted of nothing and who have no opportunity to reply” (full story).
August 21-22 — The Marie Antoinette school of public relations. The June issue of George featured a lavish photo spread (“Puff Daddies”) of six lawyers who “have raked in more than $5 billion for their firms from tobacco litigation“. The backdrops weren’t the usual stuffy law libraries, either. They included the racing boat, conspicuously labeled “Gunsmoke”, of Pascagoula’s Richard Scruggs, brother-in-law of Senate majority leader Trent Lott (more than $1 billion in fees for representing Mississippi and other states); the twenty-horse equestrian estate of Charleston’s Joseph Rice (somewhere between $1 billion and $10 billion); the private putting green on the Pensacola estate of Fred Levin ($325 million); a foundation endowed by politically ambitious Michael Ciresi of Minnesota ($440 million; “some of the fees are excessive”, he cheerfully agrees); and the opulent bathtub where South Florida’s Robert Montgomery ($678 million), posed, fully clothed, under what the Palm Beach Post called “English artist David Jagger’s painting of a naked woman”. (Montgomery describes as “outrageous” Florida’s move to accept an $11.3 billion settlement without forking over a full one-quarter of it to lawyers as agreed). An ostensibly less material note was struck by Seattle’s Steve Berman (roughly $2 billion), who previously made it big filing shareholder class actions, and who says, “I got the notion in the ’60s that you can protest by growing your hair long or you can get trained in the methods of the establishment and use their own tools to beat them. There’s nothing better than beating them at their own game.”
Addressing an Americans for Tax Reform audience earlier this summer, Wall Street Journal editorialist John Fund said he marveled at the willingness of the legal tycoons to rub their critics’ noses in their taxpayer-leveraged success by cooperating in such displays. “Even the robber barons in the Nineteenth Century knew better than to do it that way. Is it that they don’t have anyone giving them p.r. advice? Or do they just think at this point they’re invulnerable?”
August 21-22 — Weekend reading. Pixels to take to the cabin or island:
* Next on the identity-politics agenda: “Partly due to the flurry of judicial and legislative activity pursuant to the Americans With Disabilities Act of 1990, disability studies, once an arcane field of literary theory, has begun to attract attention from both the media and the academy,” reports Norah Vincent in the August 18 Salon. Brown University professor Carol Poore asserts that “disability is actually preferable to ability in that able-bodiedness ‘is the precondition for being a tool of the ruling class.'” Some in the disabilities movement “maintain that, even if they were presented with a cure for their disabilities, they wouldn’t take it” (full story).
* Overlawyered.com‘s editor devotes his latest Reason column to the legal background of the Supreme Court’s Davis v. Monroe decision in May, the one that allowed schools and universities to be sued for not remedying “student-on-student” harassment. No federal law in fact creates a right to sue over sexual harassment in education; it’s an “implied private right of action”, which means basically that the courts get to make it up as they go along. (“Title IX’s Invisible Ink“, August/September).
* From the north comes word that the Canadian Broadcasting Standards Council has declined to take action against Global Television for its July 1998 broadcast of a 45-year-old Bugs Bunny cartoon. A feminist complainant had hauled Global before the tribunal over an episode of the “Bugs Bunny and Tweety” show, alleging that the wascally wabbit had uttered remarks demeaning to women (National Post, Fox News/Reuters, Boston Globe (links now dead))
August 20 — The long march through the courtrooms. From Counterpunch.org, the webzine of left-wingers Alexander Cockburn and Jeffrey St. Clair: “Hardly had she [Hillary Rodham] raised her foot to step over the threshold of radicalism than she turned back. She declined to go with the SNCC [Student Non-Violent Coordinating Committee], turned down an offer to work with Saul Alinsky as a community organizer in Chicago. Anderson quotes her political science prof at Wellesley, Alan Schecter, as saying that by the late 1960s his pupil had decided that the best radical strategy was to ‘”use the legal system” as an agent of change.’ She wasn’t alone in that calculation. The long march of the left through the courtrooms was under way: the world would become a better place, courtesy of courtroom briefs, complaints and class action suits.
“And so what we have seen, across the last three decades, is the left vanishing into the quicksands of regulation. All society’s problems could be fixed by a statute, a rule, a waiver, a program. Much of the antiwar left vanished into the consumer movement, the environmental movement and legal fixitry. The mass movement died and litigation — often successful — flourished amid the ruins” (“The First Lady Syndrome”, August 11 — full story)
August 20 — “Three insurers sued for $100 million”. $300 million, actually, since a Prince George’s County, Maryland court is being asked to mulct Allstate, GEICO and State Farm nine digits’ worth apiece for the offense of applying managed-care-style guidelines to limit policyholders’ personal medical claims after auto mishaps. This AP story commits a few of the usual journalistic sins: 1) it signals no awareness that the dollar demands in such cases can be arbitrarily picked for shock/news value, our legal system putting no price tag on exaggeration; 2) it ignores the probable role of the lawyers as parties-in-interest (though it does report that many of the individual policyholders’ claims are for less than $100); 3) it finesses the purely circular process by which anyone deems such filings newsworthy (the seven named customers would normally have had trouble getting even back-page local coverage, but instead scored big national headlines. Why? Because their lawyers asserted a right to speak for a large class of policyholders nationwide. Why would a court accord these particular lawyers that right? Well, they did get all this national publicity…) Best detail: “All of the plaintiffs have maintained their coverage with the companies despite the disputes.” Mad enough to sue, in other words, but not mad enough to switch companies (Yahoo/AP; link now dead).
August 20 — New Overlawyered.com pages: tobacco tycoons, litigation in the workplace. Two more newsworthy topics get their own subpages, bringing the number of topical pages to eight. Seven weeks old, this site has now served more than 15,000 pages, with our traffic rate nearly doubling this month from last. Thanks!
August 19 — Plus extra damages for having argued with us. In yesterday’s Washington Post, David Ignatius calls global warming a potential “plaintiff’s lawyer’s dream”, quoting former deputy energy secretary Lynn Coleman as saying that if doomsayers’ predictions prove accurate, lawyers could file trillions of dollars in claims against utilities, oil companies and others for weather-related effects. Significantly, Ignatius suggests (“the best analogy may be tobacco”) that future juries will be angered by some companies’ current boldness in debating the issue by way of counter-studies and newspaper ads. Apparently one “lesson of tobacco” is that it’s henceforth going to count as an independently punishable offense to defend one’s business in public controversy (link now dead).
August 19 — Click here to sue! Seattle-based Bendich, Stobaugh and Strong, P.C. specializes in employee class actions arguing that temp, freelance and independent-contractor employees were really “misclassified” and deserve retroactive raises and benefits, no matter what the two sides may have thought they were bargaining for at the time. Taking advantage of the Web, the firm makes it really easy to join its suits against Microsoft (see also Jan. 11, 2000 commentary), Arco, King County (Seattle) and Los Angeles County.
August 19 — NAACP’s “ludicrous” anti-gun suit. Ninety percent of murders of blacks are committed by other blacks, David Horowitz observes, but now litigation offers a handy way to blame the toll on distant white-owned gunmakers, advancing “a fantasy in which African-Americans are no longer responsible for anything negative they do, even to themselves”. (Salon, August 16 — full column).
August 19 — Another scare starts to fizzle. “For three years now, organizations ranging from environmental groups to Consumer Reports have been proclaiming the existence of a deadly wave of endocrine disrupters that cause cancer, infertility, and personality abnormalities,” writes Gregg Easterbrook in the August 30 New Republic. Now the National Academy of Sciences has studied the issue of environmental residues of these synthetic hormones and found much less than meets the eye in the scare reports. (full article). Score another one for skeptics Mike Fumento and Ron Bailey, as well as for the New York Times‘s much-hatcheted Gina Kolata, whose refusal to hype the endocrine-disrupter scare was a chief count in the campaign against her typified by Mark Dowie’s article in the July 6, 1998 Nation.
August 18 — Undislodgeable educators. Tenure laws make it hard in many states to remove even a badly underperforming teacher from the classroom, but hopes for reform rose when Bob Chase became president of the National Education Association with an agenda that included “peer review” methods like those pioneered by NEA’s Columbus, Ohio affiliate. “The goal of peer review is to help people succeed,” Chase has said. “But it could also speed up the process of dismissing a teacher who is not successful….We know that it sometimes takes five or six years to get rid of a teacher, and that is too long.”
But can peer review work if it’s just an overlay onto, rather than a substitute for, the laggard teacher’s right to challenge a dismissal by every current legal means? That question is posed by the case of Ivy Featherstone, a 25-year-veteran teacher in the Columbus schools whom administrators often observed reading the paper in class with his feet up on the desk while students snoozed. Two years of intensively applied peer review, followed by 16 days of hearings, led to the conclusion that Featherstone should be given a “negative release”, and he was suspended without pay. Duration of the process up to that point: three years, and it turned out things were just getting started. Featherstone was soon off to federal court to charge that the dismissal was racially discriminatory, and it’s taken four more years for a judge to dismiss that case — not on the merits, but on the grounds that Featherstone failed to take the procedural steps needed to preserve his rights to sue. (If he had, presumably, the case might still be in progress). The case gets written up in this week’s communiqué (week of August 16) from Mike Antonucci’s invaluable Education Intelligence Agency; subscriptions are free, and highly recommended to anyone with an interest in how schools work.
August 18 — Ohio case fallout. In a blistering editorial (no longer online), the Columbus Dispatch calls the state high court’s striking down of tort reform (see item for August 17, below) “an act of arrogance and an affront to the doctrine of separation of powers”. Meanwhile, furious business groups vow to make the next set of judicial elections a referendum on the court’s activism. Though with a nominal Republican majority, “the current seven-member tribunal has gained a reputation as a ‘plaintiffs’ court.’ Two Republican justices, Andrew Douglas and Paul E. Pfeifer, have become frequent swing voters with decisions endearing them to labor unions and trial lawyers.” (Joe Hallett, Columbus Dispatch, Aug. 17).
August 18 — “Dieters still want fen-phen”. The hazards of the drug are frightening; so are those of obesity, and Cincinnati Enquirer reporter Susan Vela found many local residents wishing the system still permitted them a choice. “It calmed the monster in my body,” said one woman who was able to get down to 136 on fen-phen but has gone up to 210 without it. “Who do I sue to get it back on the market? I’m suffering without it.” (Aug. 16; full story). An August 14 Washington Post editorial calls the recent Texas $23 million award against the drug’s manufacturer “a terrible signal, almost guaranteed to bring thousands more plaintiffs to court on flimsy evidence”.
August 17 — Ohio high court says forget tort reform; should unionists be cheering? By a one-vote margin, the Ohio Supreme Court basically notifies the state’s lawmakers that it won’t tolerate any attempts by them to say how the state’s liability law should operate. “Ohio legislators might as well shut up shop and go home,” said Linda Woggon of the Ohio Chamber of Commerce. The decision is the 90th in which a state court has invalidated efforts to curb litigation, according to sources at the American Tort Reform Association, which keeps the dismal count. (Columbus Dispatch (link now dead), Cleveland Plain Dealer, Cincinnati Enquirer coverage). Overlawyered.com intended to give the Ohio constitution a look-through to see whether it in fact contained a provision prohibiting legislatures from legislating, but found that as of this morning the state’s engine for searching the Ohio constitution was broken and returning error messages, which seemed kind of appropriate, actually.
The statute had been challenged not only by the Ohio Academy of Trial Lawyers (which argued its members would lose business) but also by the state AFL-CIO, whose president William A. Burga, quoted in the Columbus Dispatch, said “anyone who has been harmed or injured” deserves “their day in court and…a fair decision from a jury”. That’s kind of ironic, since unions themselves long ago procured for themselves a series of tort reforms far more favorable than anything being asked for by the business community, insulating them from the risk of unbounded jury awards at the hands of complainants who’ve been (say) roughed up by union pickets. In California, for example, state law already pointedly says that citizens’ “right to be free from any violence, or intimidation by threat of violence” does not apply in a context of “otherwise lawful labor picketing” (gee, thanks, guys!) and AB 1268 (Kuehl), now moving toward enactment in the labor/trial-lawyer-friendly state legislature, would curtail unions’ civil liability yet further, curbing the application of exemplary (punitive) damages and vicarious liability even if acts of violence are committed by unionists for the organization’s benefit.
So here’s the net effect: it’s just dandy and highly constitutional for legislators to immunize unions from the danger of adverse jury verdicts for acts of deliberate violence, but it suddenly becomes an unconstitutional invasion of jury prerogatives when they try to set any limits at all on the award of “noneconomic” damages, for categories like pain and suffering and emotional distress, in cases where businesses are charged with responsibility for accidental injuries. What do you think Mr. Burga of the Ohio AFL-CIO would say if someone “harmed or injured” crossing a picket line in Akron or Youngstown decided to claim a constitutional right to “their day in court and…a fair decision from a jury”? Would he still insist that legislatures have no constitutional power to limit liability?
August 17 — New Overlawyered.com page: The case for loser-pays. Despite continuing strong Main Street interest in the loser-pays idea, there’s been precious little in the way of Web resources on it, so we’ve made it the subject of the sixth and latest in our series of topical links pages. It’s the most basic, the most indispensable, and the most overdue of all legal reforms; if we can bring it even a little closer to enactment, our time will have been well spent.
August 17 — Correction. In the August 6 item, “Courts actually begin to define harassment“, summarizing a recent Chicago Tribune report on the ripple effects of last year’s Oncale decision, we erroneously reported that the Tribune article did not mention the Oncale Court’s unanimity. In fact, it did mention it. Our apologies.
August 16 — Think I’m too litigious? I’ll sue! (I). In Bakersfield, Calif., the developer of the Fairway Oaks community won’t sell new houses to attorneys because it considers them too likely to get into disputes. Attorney Timothy Liebaert said he was “shocked” and “very mad” to be turned away on the basis of such a generalization, so — how better to disprove it? — he’s suing them. However, occupation is not among the list of categories covered by California housing discrimination laws, and a Kern County judge proceeded to rule that there are legitimate business reasons for a developer to prefer non-lawyer customers. Fairway’s sponsors had previously sold to two attorneys among 500 home buyers and had gotten into a protracted dispute with one, though it had not gone to litigation. Liebaert has filed an appeal and plans to keep the case going on new theories, such as a claim that a developer, if it wants to pursue a policy of not selling to lawyers, is legally obliged to announce that policy in its ads. (Reuters/Fox News; Los Angeles Times, July 25)
In 1986 it was reported that two medical groups practicing obstetrics and gynecology in Brunswick, Ga., had refused to accept as patients attorney Amanda Williams, who had filed what the doctors considered meritless malpractice suits against some of their number, or her law clerk Sheryl Jolly. Williams said she found the policy “offensive” but said “they no doubt take it personally when I file a suit on behalf of a client”.
August 16 — Think I’m too litigious? I’ll sue! (II). Remind us to stay on the good side of attorney Michael Bidart of Claremont, Calif.’s Shernoff, Bidart, Darras & Arkin, who garnered big headlines in January when he convinced a San Bernardino County jury to vote $120.5 million against Aetna U.S. Healthcare for delaying approval of a bone-marrow transplant that he argued might have saved the life of patient David Goodrich. Aetna CEO Richard Huber, angered by the verdict, blamed it in part on the efforts of “a skillful ambulance-chasing lawyer”. And Bidart responded to this dastardly insult by…suing Huber last month for defamation in Los Angeles Superior Court. Legal correspondent Reynolds Holding comments in the San Francisco Chronicle (August 8) that Bidart is “apparently more adept at dishing publicity than taking it”.
August 16 — To restore individual responsibility, bring back contract principles. In this recent Policy Analysis from the Cato Institute, Professor Michael Krauss of George Mason U. School of Law says one major reason liability law has fallen into disrepute is that courts have supplanted contract with tort principles; it doesn’t matter whether you foresaw a risk and agreed to bear it, they’ll let you sue anyway. Formerly, the law sought to secure parties’ rights to shape their own relationships, the role of tort law being to secure persons against unconsensual invasion. Now reliable law has given way to “a general social insurance scheme”, particularly in areas like product liability and medical malpractice, with lamentable consequences: “our rights have been given increasingly less respect by government”. (Full paper)