The Library of Congress, as part of a project that aims to preserve press coverage of the 2002 campaign, has archived this site as it appeared in the fall of that year, along with dozens of other weblogs. LiveJournal user “UKSubs” pays us a nice tribute in a list of favorite sites, writing: “I am still shocked by the number of ridiculous frivolous lawsuits filed in this country and others on a daily basis. Overlawyered works by finding a nice tone that is firmly between mocking and anger. Everytime I read Overlawyered, a part of me screams, what have I gotten myself into.” And we got a great big influx of traffic from Neal Boortz’s popular site (see Mar. 1-3, 2002) when the Atlanta-based radio host linked to our Jun. 1 item on the lawyer who hopes to offer “post-traumatic slave syndrome” as an excuse for an Oregon defendant accused of murder.
Posts Tagged ‘Oregon’
Blue-ribbon excuses: post-traumatic slavery syndrome
By reader acclaim, from Oregon: “A Portland lawyer says suffering by African Americans at the hands of slave owners is to blame in the death of a 2-year-old Beaverton boy. Randall Vogt is offering the untested theory, called post traumatic slave syndrome, in his defense of Isaac Cortez Bynum, who is charged with murder by abuse in the June 30 death of his son, Ryshawn Lamar Bynum. Vogt says he will argue — ‘in a general way’ — that masters beat slaves, so Bynum was justified in beating his son.” However, attorney Vogt may find it a challenge to secure the admissibility of the slavery-trauma theory, which has been accepted by neither the courts nor the psychiatric profession. Washington County Circuit Judge Nancy W. Campbell threw out pretrial testimony by Joy DeGruy-Leary, an assistant professor in the Portland State University Graduate School of Social Work, to the effect that the brutality of slavery, together with continuing racism, oppression and societal inequality, helps explain self-destructive, violent or aggressive behavior in African-Americans. Judge Campbell said she would reconsider allowing the defense in Bynum’s September trial, but only “if his lawyer can show the slave theory is an accepted mental disorder with a valid scientific basis and specifically applies to this case.” (Holly Danks, “Judge rejects slave trauma as defense for killing”, The Oregonian, May 31). According to David Bernstein, writing two years ago, the standards for admission of expert testimony in Oregon are not as tight as might be wished (“Disinterested in Daubert: State Courts Lag Behind In Opposing ‘Junk’ Science”, Washington Legal Foundation (PDF) Legal Opinion Letter, Jun. 21, 2002)(search on “Oregon” or scroll to near end of piece).
Toward an “apology privilege”
“On the one hand, it should not surprise us that genuine contrition defuses litigation. Anybody who has ever served as a general counsel of a corporation knows — or should know — that most people bring lawsuits because they are angry. … On the other hand, we have created rules of evidence that make it very difficult for people and institutions to apologize. … If you apologize, it can and will be used against you to prove liability. If you don’t apologize, though, you may increase the likelihood of the lawsuit, you avoid coming to terms with your own culpability, and you fuel the rage of the person you injured.
“Two states, Colorado and Oregon, have created a little space for civility by passing laws that bar plaintiffs from introducing a doctor’s apology as evidence in a medical malpractice case. A great start, but why carve out an ‘apology privilege’ just for doctors?” — Jack Henneman of Tigerhawk (May 18). And see Cut to Cure, also May 18.
Judge Weinstein shepherds gun lawsuit
As if to confirm this website’s worst fears (Mar. 31, 2003 and Mar. 24, 2003), federal Judge Jack Weinstein of the Eastern District of New York is permitting the City of New York to proceed with a “public nuisance” suit against the gun industry. If that theory sounds eerily familiar, it is because a Manhattan appellate state court threw out an essentially identical public nuisance lawsuit by the state of New York against the gun industry in the Sturm, Ruger case, noting that New York state law did not countenance such attenuated theories of liability (Jun. 30 and Jul. 4). The district court opinion is a marvelous example of how an unprecedented theory of liability lifts itself up by the bootstraps: the decision relies heavily on Judge Weinstein’s previous opinions and the Ninth Circuit’s unreasoned Ileto v. Glock decision (Dec. 3 and Nov. 20); while claiming that Sturm, Ruger supports it, the decision ignores language (and related precedent) in that opinion that would preclude the City’s theory of liability. (Tom Perotta, “Federal Judge Keeps New York City’s Gun Suit Alive”, New York Law Journal, Apr. 13; City of New York v. Beretta opinion).
Update: Clayton Cramer comments.
Pet-sitter sued for $160,000
At first it seemed like a feel-good story: dog is lost and found two months later, though one doubts that the “white witch” and “four psychics” the owner hired were of great help. But a day later the Portland dog owner sued the pet-sitter who lost the dog for $160,000. The lawsuit asks for, among other things, $10,000 for “the temporary loss of the special value of Fremont based on his qualities, characteristics and pedigree.” (Joseph Rose, “Owner sues pet sitter in loss of dog”, Oregonian, Dec. 6). A follow-up story indicates community outrage. (“Street beat”, Oregonian, Dec. 9).
“Once a C-section, always a C-section” policy blamed on legal risks
Oregon: “Women who have delivered a baby by Caesarean section must deliver their next child the same way if they give birth at Merle West Medical Center. The hospital’s board of directors today announced a new policy that supports a decision by local obstetricians to not deliver a baby vaginally if the mother has had a previous Caesarean section, a surgical procedure that delivers the baby by making an incision in the abdomen and uterus. The decision is based more on legal implications related to the potentially high-risk procedure than on medical statistics, said Dr. Rick Zwartverwer, vice president for medical affairs at Merle West Medical Center.” (Marcia McGonigle, “Hospital alters C-section policy”, Klamath Falls (Ore.) Herald & News, Jul. 8)(see Feb. 5, 2001). Update Nov. 29, 2004: New York Times covers the story.
Essay on loser-pays
The following essay was written circa 1999 by our editor and formerly appeared on the site’s topical page on loser-pays.
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America differs from all other Western democracies (indeed, from virtually all nations of any sort) in its refusal to recognize the principle that the losing side in litigation should contribute toward “making whole” its prevailing opponent. It’s long past time this country joined the world in adopting that principle; unfortunately, any steps toward doing so must contend with deeply entrenched resistance from the organized bar, which likes the system the way it is.
Overlawyered.com‘s editor wrote an account in Reason, June 1995, aimed at explaining how loser-pays works in practice and dispelling some of the more common misconceptions about the device. He also testified before Congress when the issue came up that year as part of the “Contract with America”. Not online, unfortunately, are most of the relevant sections from The Litigation Explosion, which argues at length for the loser-pays idea, especially chapter 15, “Strict Liability for Lawyering”.