As long as I am allowed to redistribute wealth from out-of-state companies to in-state plaintiffs, I shall continue to do so. Not only is my sleep enhanced when I give someone else’s money away, but so is my job security, because the in-state plaintiffs, their families and their friends will re-elect me.
I entered this as a comment on Ted’s earlier post, and figured it was worth giving separate post status:
I too have read The Product Liability Mess with minute attention, having written the Fortune magazine review of the book, which was among the more high-profile reviews it got. And Ted is right: the more context you supply for the quote from the rest of the book, the less doubt you will harbor that it was meant straight, not ironically.
Since Neely’s statements in the book were almost electrifyingly frank, I can’t say I am surprised that he would later find it expedient to back off from and indeed disavow them; aside from changing his mind on matters of policy (at least I assume he’s changed his mind), and the exigencies of his later practice as a plaintiff’s lawyer, we all assumed at the time that in his judicial role he would come under enormous pressure for seemingly having admitted to deciding cases in a way many would regard as illegitimate.
It is remarkable that he would now speak of wanting to sell books as a motivation while simultaneously maintaining that the passages in question were meant to be taken ironically. It was precisely because the statements were not presented as kidding around that they foreseeably called wide attention to the book. (This is also in tension with Thornburg’s theory that Neely was critically describing other judges’ thought processes but not his own. I have to wonder whether she, like others who have taken up this matter recently, sat down and read the book.)
After my Fortune review was published I met and got to know Neely; we appeared on panel discussions together and shared many conversations. Without breaking any confidences about the private talk, I will only observe that at the public appearances we did, he had ample opportunity to state that he had just been kidding or merely ironic in the passages at issue, which figured so prominently in my Fortune review, but I do not recall his taking any such opportunity. I do not know, by the way, whether I am the nameless reviewer he unkindly calls a simpleton, but I have reason to doubt it, since he subsequently gave an extraordinarily favorable blurb to my book The Litigation Explosion, for which I continue to be grateful.
The whole thing is regrettable on a number of levels. I continue to think the books Neely wrote in his early career (“How Courts Govern America”, etc.) have much to recommend them both in substance and in their clear, pungent style, and for many reasons regret the loss of the career as public intellectual on which he had seemed to be well launched.
“As long as I am allowed to redistribute wealth from out-of-state companies to in-state plaintiffs, I shall continue to do so. Not only is my sleep enhanced when I give someone else’s money away, but so is my job security, because the in-state plaintiffs, their families and their friends will re-elect me. ”
— Richard Neely, Justice, West Virginia Supreme Court, The Product Liability Mess at 4
In 2006, former West Virginia judge and justice Richard Neely wrote an article called “Arbitration and the Godless Bloodsuckers” (reprinted at the anti-consumer Consumerist) making a sensational claim: he had served as an arbitrator for the National Arbitration Forum, but because of his rulings denying attorneys’ fees, had been blacklisted from further arbitration proceedings because the “godless bloodsucker” banks (no, really, those are his words) had decided he was an “unacceptable” arbitrator. As part of the litigation lobby’s war on consumer choice in seeking legislation to force consumers to litigate even if they wish the opportunity for lower prices through agreeing to mandatory binding arbitration (see the Overlawyered section on arbitration), the claims have been repeated on multiple occasions, in Congressional testimony, in newspaper and magazine articles, in blogs, and even in the Overlawyered comments. Turns out, according to a response made by the National Arbitration Forum, that Judge Neely has made some claims that weren’t true:
- Contrary to Neely’s claims, he was never “struck” from any case by any party.
- At least under NAF rules, a party cannot unilaterally select an arbitrator: the two sides must agree, or, in the alternative, each select an arbitrator who will in turn mutually agree upon a third arbitrator. (Code of Procedure Rule 21.) Parties can strike an arbitrator for bias—for example, perhaps one of the arbitrators has announced that a class of parties are “godless bloodsuckers.” But this right applies equally to consumers and merchants.
- Neely claimed incorrectly that a party defaulting could be liable for more than they would under the civil justice system. But arbitration participants have more procedural protections in the case of default than those operating in the civil justice system–there is no “default” in arbitration. Rather, the arbitrator has to decide the case on the merits, even without the participation of the customer. Given the fact that the vast majority of debt collections in court are resolved by default, the typical consumer comes out far ahead in arbitration.
- Neely proposed a reform that arbitrators be required to disclose conflicts of interest. But arbitrators are already required to disclose such conflicts.
Read the whole thing. Neely (who ruled on the merits 100% of the time for banks against their customers in the two debt collection cases he decided) was apparently so upset by his experience that he signed a new agreement with NAF after the events he claims to describe transpired. One wonders: has the plaintiffs’ bar retained Neely as a consultant on the issue, and he decided he could make more money bad-mouthing arbitration than as an arbitrator? One will never know—unless Neely discloses his conflicts of interest.
Richard Neely’s previous claim to fame was stating, while Chief Justice of the West Virginia Supreme Court, “As long as I am allowed to redistribute wealth from out-of-state companies to in-state plaintiffs, I shall continue to do so.” He’s had somewhat less success doing so as a plaintiffs’ attorney (June 2002).
June 10 — Advertisement for “friendly” employee deemed discriminatory. In Bolton, England, a government job listing center has refused to accept an advertisement asking for a “friendly” applicant to manage a travel agency’s staff cafe. The travel agency’s manager said “we were told, ‘It’s discriminatory because some people may perceive that they are friendly even if you don’t’.” A spokeswoman for the government bureau that runs the job center service acknowledged that “somebody’s been a little over-zealous,” but also said: “We’ve got to be very careful when we get adverts so we don’t discriminate against anybody.” (“Jobcentre comes under ‘friendly’ fire”, BBC, Jun. 7). (DURABLE LINK)
June 10 — Profiling: a Democrat outflanks Ashcroft. On CNN last week, California Democratic Sen. Dianne Feinstein spoke frankly of the need for some measure of ethnic profiling in both air passenger security and intelligence gathering — a position that places her considerably to the right of Attorney General John Ashcroft and his colleagues in the Bush Administration, who continue to deny any such need. (Chris Weinkopf, “Sanity, not bigotry, calls for profiling”, L.A. Daily News, Jun. 9). (DURABLE LINK)
June 10 — Sin-suit city. In Las Vegas, ripples continue from the word that some lawyers and activists are eyeing the hometown industry as their nominee for Next Tobacco (“Organization: Casinos could be sued”, Las Vegas Review-Journal, Jun. 6; see May 31, May 20-21). And on the food-suit front, a major British newspaper, the Independent, has claimed that corporate machinations make healthful and low-calorie foods simply unavailable to Middle Americans, an assertion that columnist Jacob Sullum calls “such an audacious misrepresentation that I don’t know whether to refute it or simply stand in awe.” (Andrew Gumbel, “Fast Food Nation: An appetite for litigation”, The Independent, Jun. 4 (profile of anti-tobacco and anti-food industry law prof John Banzhaf)(alternate site); Jacob Sullum, “Big fat lie”, Reason Online, Jun. 7). (DURABLE LINK)
June 7-9 — “Tough tobacco laws may not deter kids”. Now they tell us dept.: “Stopping kids from buying cigarettes has become a centerpiece of anti-smoking campaigns, but a new study finds that cracking down on merchants doesn’t prevent underage smoking.” (Jim Ritter, Chicago Sun-Times, Jun. 3; Caroline M. Fichtenberg and Stanton A. Glantz, “Youth Access Interventions Do Not Affect Youth Smoking”, Pediatrics, Jun.) (via MedPundit, Jun. 5)(see Sept. 16, 1999). (DURABLE LINK)
June 7-9 — “Legal Fight Over Chemical Leak Ends With Whimper”. “Attorneys who won $38.8 million in West Virginia’s first class action toxic tort case have agreed to settle for a fraction of that amount after a federal appeals court ruled their original victory was based on the testimony of a witness who did not know what he was talking about.” FMC Corp. will instead pay only $1.35 million, which “will cover about $500,000 in litigation expenses but nothing for fees”, according to the plaintiff’s counsel, attorney/author and former state chief justice Richard Neely. (Peter Page, National Law Journal, Jun. 4). (DURABLE LINK)
June 7-9 — Helmets for roller skaters. First it was motorcycles, then bicycles, and now the anti-fun brigade, in the form of the California state senate, has voted to extend mandatory helmet-wearing to riders of skateboards, non-motorized scooters and even roller skates. (“Senate OKs helmet law for skateboarders”, AP/Contra Costa Times, May 17). (DURABLE LINK)
June 6 — Airlines sued over alleged profiling. “Washington is in its third week of self-flagellation over why the U.S. government couldn’t prevent the Sept. 11 hijackers from commandeering four planes and slamming them into the World Trade Center and the Pentagon. Meanwhile, with no sense of irony, the ACLU, the American-Arab Anti-Discrimination Committee, and some other groups are launching five separate lawsuits over cases of men being removed from airplanes. The ACLU is party to three of the suits.” (Jonah Goldberg, “Flying While Arab”, National Review Online, Jun. 5). The men were removed from planes or denied boarding in various incidents late last year after airline employees or co-passengers deemed them suspicious in behavior or appearance. “The airlines named in the suits are American, Continental, Northwest and United. Most of the companies responded strongly to the suits yesterday, denying allegations of prejudice.” (“Lawsuits Accuse 4 Airlines of Bias”, Washington Post, Jun. 5; Niala Boodhoo, “Rights Groups Hit Airlines with Post-Sept. 11 Suits”, Reuters/ Yahoo, Jun. 4).
Many opponents of passenger profiling (including, frequently, officials within the Bush administration) act as if it were flatly impermissible to apply even the slightest bit more scrutiny to young male Arab fliers with Muslim first names than to elderly Dutch nuns — a position that at least has the merit of bright-line clarity and consistency, however suicidal it could prove in practice. Curiously, the lawyers filing the latest suits seem to be taking pains to stake out a critique of profiling that is less absolutist and makes more concessions to the threats made manifest last Sept. 11. Thus Reginald Shuford, an ACLU lawyer based in New York, says his clients are resigned to a “higher level of scrutiny when they fly, more security checks” but suggests that further extra scrutiny becomes intolerable once fliers have “cleared all security checks [and are] sitting on the airplane”. (Why? He doesn’t say.) Even Ibish Hussein, of the American- Arab Anti- Discrimination Committee, acknowledges that it’s “a tricky situation” and says of refusals to fly passengers: “It’s understandable, but it’s not acceptable.” (Alexandra Marks, “New lawsuits aim to curb racism aboard airplanes”, Christian Science Monitor, Jun. 5). Despite this concessionary- sounding language, with its seeming recognition of the unavoidability of judgment calls and gray areas, at least three of the suits ask for the airlines to be subjected to punitive damages. See also Eugene Volokh, Volokh Conspiracy weblog, Jun. 4. (DURABLE LINK)
June 6 — Alexa “Editor’s Pick”. The editors of indexing service Alexa have selected various sites in the category of “Legal Reform”, with you-know-who leading the pack (June 5). This site’s front page clocks in at #94,327 in Alexa’s traffic ratings, a little ahead of Virginia Postrel (#103,177) and nipping at the heels of Matt Welch (#90,063) and Mickey Kaus (#78,754) — though we have no idea how reliable all these numbers are. Update: not very reliable at all, says Glenn Reynolds (Jun. 6) (DURABLE LINK)
June 5 — “Remove child before folding”. “Americans are not losing their minds, but they are afraid of using their minds. They are afraid to exercise judgment — afraid of being sued.” Not-to-be-missed George Will column ties together overprotective playgrounds, fear-of-asbestos verdicts, demoralized obstetricians and public employee tenure and tips the hat to author Philip Howard’s new organization Common Good, which intends to call public attention to legal excess on a regular basis (Washington Post, June 2). In April, Common Good released the results of its first study, in association with the AEI-Brookings Joint Center, on defensive medicine: “Concerns about liability are influencing medical decision-making on many levels. From the increased ordering of tests, medications, referrals, and procedures to increased paperwork and reluctance to offer off-duty medical assistance, the impact of the fear of litigation is far-reaching and profound.” (“The Fear of Litigation Study: The Impact on Medicine”, AEI-Brookings Joint Center Related Publication, April (abstract), (full text, PDF format) (DURABLE LINK)
June 3-4 — Australian party calls for banning smoking while driving. The Australian Democrats, a small but non-fringe political grouping, have called for a ban on smoking cigarettes while driving. “If using mobile phones is illegal, so should cigarette smoking in cars because of its capacity to distract drivers,” said party official Sandra Kanck in a statement. “Ms. Kanck called for legislation to also ban smoking cigarettes in vehicles transporting children. ‘Parents and other adults shouldn’t subject young people to the carcinogenic dangers of side-stream smoke in cars, yet it is common to see this happening,’ she said.” (“Democrats call to ban smoking while driving”, AAP/West Australian, May 31; see Oct. 5, 2001, Dec. 29, 1999). And although anti-tobacco campaigners are crowing about a recent court verdict in Australia against British American Tobacco, blogger “Max Power” (May 23) suggests the verdict may reflect one judge’s idiosyncratic view of company document retention obligations. (DURABLE LINK)
June 3-4 — Penthouse sued on behalf of disappointed Kournikova-oglers. Dignity of the law dept.: The skin mag has already paid to settle the legal claim of a woman whose topless images it mistakenly ran as those of Anna Kournikova, and “now Miami, Florida lawyer Reed Stomberg has filed a class-action lawsuit on behalf of himself and every other male who purchased the June issue. Stomberg explains, ‘The sole reason I paid the $8.99 was for the alleged Anna pictorial. I bought it for a friend of mine, not to say I didn’t take a quick peek at the pictures.'” (IMDB People News, May 30) (& welcome WSJ Best of the Web readers). (DURABLE LINK)
June 3-4 — Sue foodmakers for obesity? Of course! In response to its publication (see May 27) of an article critically examining the push for class actions against purveyors of calorie-laden foodstuffs, Salon draws a big sack of mail from its readers, including a couple of amusingly hysterical attacks on author Megan McArdle (May 31). (DURABLE LINK)
June 3-4 — “Top Ten New Copyright Crimes”. Satire making the rounds on what could soon land you in trouble if ideas of creators’ rights continue to proliferate: “10. Watching PBS without making a donation … 9. Changing radio stations in the car when a commercial comes on. … 7. Getting into a movie after the previews, but just in time for the main feature. … 5. Inviting friends over to watch pay-per-view.” (Ernest Miller, LawMeme, May 2 & May 8). (DURABLE LINK)
June 3-4 — Sick in Mississippi? Keep driving. Malpractice-suit crisis, cont’d: “You are driving through Mississippi and you develop a serious pain in your side. What do you do? If you are smart, you keep on driving until you reach the border.” (Dick Boland, “Sue your way to the morgue”, Washington Times, May 25; see Apr. 5) Evidence that he may not entirely be joking: Ed Cullen, “Natchez doctors eye Vidalia”, Baton Rouge Advocate, May 19 (doctors in Natchez, Miss. consider transferring practices to Vidalia, La., across the river). (DURABLE LINK)
June 19-20 — Supreme Court clarifies ADA. This term the Supreme Court handed down four decisions interpreting the Americans with Disabilities Act, in each case rejecting expansive readings of the law. Our editor analyzed the three employment cases in yesterday’s Wall Street Journal (Walter Olson, “Supreme Court Rescues ADA From Its Zealots,” Wall Street Journal, Jun. 18 (online subscribers only)). See also David J. Reis and Dipanwita Deb Amar, “U.S. Supreme Court in ‘Echazabal’ Puts Federal, State Disability Laws in Line”, The Recorder, Jun. 17) (even California employment law, nearly always more favorable for employees than its federal counterpart, acknowledges that employees may refuse to employ disabled workers in jobs that endanger their safety). (DURABLE LINK)
June 19-20 — Judicializing politics (cont’d). Rep. Bob Barr (R-Ga.), active in the 1998 battle over impeachment of then-Pres. Clinton, “has filed suit in a Washington federal court against the former president, Clinton loyalist James Carville and politically active pornographer Larry Flynt seeking compensatory damages ‘in excess of $30 million’ for ‘loss of reputation and emotional distress’ and ‘injury in his person and property’ allegedly caused by these three — who Barr claims conspired to ‘hinder [the plaintiff] in the lawful discharge of his duties.'” Barr is being represented by Larry Klayman of the famously litigious organization Judicial Watch (see Apr. 16-17). (Lloyd Grove, “Bob Barr’s Believe It or Not”, Washington Post, Jun. 13). (DURABLE LINK)
June 19-20 — To run a Bowery flophouse, hire a good lawyer. What with New York City’s absurdly anti-landlord rental code and the ongoing predations of publicly funded legal services groups, “it takes a tough lawyer to run a decent flophouse.” (John Tierney, “A Flophouse With a View (on Survival)”, New York Times, Jun. 11). Tierney, whose columns have been a highlight of the Times‘ Metro section, is moving to Washington to cover that city for the paper. (DURABLE LINK)
June 19-20 — “Suits Against Schools Explore New Turf”. Sexual harassment suits are on the rise, suits demanding concessions for special education students are already well-established, and although many states’ laws give schools some protection against personal-injury suits, “attorneys are finding creative new ways to get around the roadblocks”. (Alan Fisk, National Law Journal, Jun. 11). (DURABLE LINK)
June 17-18 — No “flood” of Muslim or Arab discrimination complaints. After the terrorist attacks last fall some major media outlets reported that state and local civil rights agencies were being flooded with complaints of discrimination by Muslims and persons of Arab descent. Notwithstanding a widely publicized recent suit against airlines for alleged misdeeds in passenger security profiling (see Jun. 6), the official numbers on other types of discrimination cases “tell a less alarming story. While there certainly was a hike in such bias claims since September, it’s hard to say that the increase was serious or even statistically significant.” (Jim Edwards, “Post-Sept. 11 ‘Backlash’ Proves Difficult to Quantify”, New Jersey Law Journal, Jun. 12). (DURABLE LINK)
June 17-18 — Spitzer riding high. In the New York Times Magazine, James Traub profiles New York Attorney General Eliot Spitzer, currently enjoying a wave of favorable publicity after negotiating a settlement in which Merrill Lynch agreed to change its analyst policy and fork over money to the states; Spitzer’s efforts to bludgeon the national gun industry into accepting unlegislated gun controls, however, have been markedly less successful. Quotes this site’s editor (James Traub, “The Attorney General Goes to War”, New York Times Magazine, Jun. 16). On abusive litigation by AGs, see the recently published analysis by Cumberland law prof Michael DeBow, “Restraining State Attorneys General, Curbing Government Lawsuit Abuse” (Cato Policy Analysis No. 437, May 10). On the federalism angle, see Michael S. Greve, “Free Eliot Spitzer!”, American Enterprise Institute Federalist Outlook, May-June. Plus: Boston Globe columnist Charles Stein on the trouble with policymaking by prosecution, also quotes our editor (“Memo to Policy Makers: Make Policy”, Jun. 16). (DURABLE LINK)
June 17-18 — Jury nails “The Hammer”. Rochester, N.Y.: “A state Supreme Court jury nailed personal-injury lawyer James ‘The Hammer’ Shapiro with a $1.9 million judgment Tuesday in a legal-malpractice case. Jurors found that Shapiro, best known for flamboyant television commercials in which he promises to deliver big cash to accident victims, mishandled the case of client Christopher Wagner, who was critically injured in a two-car crash in Livingston County. They also found that Shapiro’s advertising, which led Wagner to him, was false and misleading. … Wagner’s lawyers, Patrick Burke and Robert Williams, said the award should chasten Shapiro, who gleefully refers to himself as ‘the meanest, nastiest S.O.B. in town’ in his commercials.”
After suffering a severe auto crash which left him in a coma for a month, Wagner “hired Shapiro after his brother saw one of Shapiro’s TV commercials. Wagner dealt with a paralegal and never met a lawyer from Shapiro’s firm until after he agreed to a $65,000 settlement.” The jury found that the law firm had negligently failed to press Wagner’s case against the other motorist, instead accepting from that motorist’s insurer a settlement which undervalued the case and was insufficient to pay Wagner’s medical bills. “Shapiro, whose firm of Shapiro and Shapiro is based in Rochester, didn’t attend the trial. He testified by a videotaped deposition in which he admitted that he has never tried a case in court, leaves the legal work to subordinates and lives in Florida.” (Michael Ziegler, “Award claws ‘The Hammer'”, Rochester Democrat & Chronicle, Jun. 12)(link now dead). Shapiro is also known for his role in websites entitled Million Dollar Lungs (asbestos client recruitment) and CPalsy.com (“Your child’s cerebral palsy may be the result of a mistake. Don’t Get Mad, Get Even”). See also Dec. 5, 2003. Update May 24, 2004: court suspends Shapiro from practice in New York for one year. (DURABLE LINK)
June 17-18 — Not worth the hassle? “Home Depot Inc., the nation’s largest hardware and home-improvement chain, has told its 1,400 stores not to do business with the U.S. government or its representatives.” Most managers in the chain surveyed by the St. Louis Post-Dispatch said “they had received instructions from Home Depot’s corporate headquarters this month not to take government credit cards, purchase orders or even cash if the items are being used by the federal government. … One Home Depot associate at a store in San Diego said, ‘It feels weird telling some kid in uniform that I can’t sell him 10 gallons of paint because we don’t do business with the government.'” Although the Atlanta-based chain is close-lipped about the reasons for its policy, companies that sell more than nominal quantities of products or services to the federal government risk being designated as federal contractors, a status that brings them under a large body of regulation over their practices in employment and other areas. (Andrew Schneider, “Home Depot stops doing business with federal government”, St. Louis Post-Dispatch, Jun. 16). Update Jul. 1-2: company reverses policy. (DURABLE LINK)
June 17-18 — Alamo’s stand. “Alamo Rent A Car had no ‘duty to warn’ a Dutch couple visiting Miami not to drive into high-crime areas of the city, lawyers for the company told a three-judge panel of the 3rd District Court of Appeal Wednesday in an effort to overturn a $5.2 million jury verdict. Lawyers for Alamo told the judges that there is no way their client could have known that the couple would venture into Miami’s Liberty City neighborhood, where Tosca Dieperink was shot to death as she sat in the rental car in 1996.” We last covered this story Jun. 29, 2000, at which time we wondered: how many different kinds of legal trouble would Alamo have gotten into if it had warned its customers to stay out of the toughest urban neighborhoods? (Susan R. Miller, “Car Rental Agency Fights $5.2M Verdict for Slain Tourist”, Miami Daily Business Review, Jun. 14). (DURABLE LINK)
June 14-16 — “Civil Rights Agency Retaliated Against Worker, EEOC Rules”. Do as we say dept.: The Equal Employment Opportunity Commission has ruled that the U.S. Commission on Civil Rights, the federal agency which claims for itself the role of public watchdog on discrimination matters, unlawfully retaliated against its former staff solicitor, Emma Monroig, after she filed a discrimination complaint against it in 1995. The commission, which has a staff of about 75, has been hit with nine recent EEOC complaints from employees, of which at least three have been settled. (Darryl Fears, Washington Post, Jun. 13). (DURABLE LINK)
June 14-16 — Dealership on the hook. “A Michigan auto dealership that failed to complete the title transfer on a car involved in a fatal accident has been hit with a $12 million jury verdict.” In July 1999 Les Stanford Oldsmobile in suburban Troy allowed Mohammad Bazzi, then 20, to drive away his newly purchased 1996 Camaro convertible although the paperwork to transfer title was not complete. Bazzi was supposed to return to sign the papers, but never made it: two days later, driving intoxicated at an estimated 100 mph on I-75 at 2:30 in the morning, he smashed the car into the rear of a slower moving truck, killing his 18-year-old passenger, Ronny Hashem. Hashem’s survivors sued the dealership citing Michigan’s 70-year-old Owner Liability Statute, “which holds the owner of a car liable whenever the car is being operated consensually”. (Peter Page, “High-Speed Death”, National Law Journal, Jun. 12). (DURABLE LINK)
June 14-16 — Batch of reader letters. Readers take issue with our coverage of a Canadian court’s ruling on welfare reform (we stand accused of citing a conservative columnist) and of the recent suit against a baseball-bat maker by a teenager hit by a line drive; offer a different perspective on the Audubon String Quartet litigation; and track down the drunk driving defense law firm that has trademarked the phrase “Friends don’t let friends plead guilty”. (DURABLE LINK)
June 13 — Breaking news: slaying at Texas law firm. 79-year-old Richard Joseph Gerzine of Vidor, Tex. is in custody following a fatal shooting at the offices of the prominent Beaumont plaintiff’s firm of Reaud, Morgan & Quinn, known for its role in the asbestos and tobacco controversies. The victim was senior partner Cris Quinn. The perpetrator was said to have been angered by the law firm’s refusal to represent him in an asbestos case. (Beaumont Enterprise, Jun. 13; AP/Houston Chronicle, Jun. 13). (DURABLE LINK)
June 13 — “Student gets diploma after threatening lawsuit”. “A threatening letter from her lawyer and an opportunity to retake an exam hours before graduation helped a West Valley high school student get her diploma last month. … On May 22, Stan Massad, a Glendale attorney representing the Peoria family, faxed a letter to [English teacher Elizabeth] Joice asking her to take ‘whatever action is necessary’ for the student to graduate or the family would be forced to sue. ‘Of course, all information regarding your background, your employment records, all of your class records, past and present, dealings with this and other students becomes relevant, should litigation be necessary,’ he wrote to the teacher.” (Monica Alonzo-Dunsmoor, Arizona Republic, Jun. 10; lawyer’s letter; teacher’s response; Joanne Jacobs, Jun. 12).
UPDATE: The case has mushroomed into a cause celebre in Phoenix (Arizona Republic coverage: Maggie Galehouse, “Decision to allow Peoria student to graduate draws outrage”, Jun. 12; “State Bar probes threat against teacher over student’s graduation”, Jun. 13; “Failing your classes? Get a better lawyer”, (editorial), Jun. 11; “Pathetic plight in Peoria” (editorial), Jun. 12; Benson cartoon, Jun. 11; Richard Ruelas, “Lawyer made an offer school couldn’t refuse”, Jun. 12). In the blog world, see Thomas Vincent, Jun. 11 and later posts; Edward Boyd, Jun. 11 and later posts; DesertPundit, Jun. 13. And InstaPundit and “Max Power” discuss issues of whether the lawyer might face bar discipline and why the family members have been allowed to keep their names confidential. More update: Monica Alonzo-Dunsmoor, “Peoria district issues an apology for furor”, Arizona Republic, Jun. 15. (DURABLE LINK)
June 13 — “The NFL Vs. Everyone”. “Why is it that football players/owners/teams are in court all the time? And why would the Broncos sue fans? The NFL is a great case study in litigiousness gone haywire.” (Dan Lewis, dlewis.net, Jun. 12; see “NFL Bootleg: Making the Court Circuit”, Bootleg Sports/FoxSports, Jun. 12). Lewis’s blog also calls our attention (Jun. 11) to this article explaining one remarkable implication of new “medical privacy” laws: “Law May Forbid Leagues to Say if Player Is Hurt” (Buster Olney, New York Times, Jun. 11 (reg)) (DURABLE LINK)
June 13 — He’s at it again. It seems Kevin Phillips has published another of his awful books. Here’s what we said about one of the earlier ones. (DURABLE LINK)
June 11-12 — “French ban sought for Fallaci book on Islam”. The true meaning of hate-speech laws? In France, an “anti-racist” group has filed a legal action demanding a ban on the publication of a new book by outspoken Italian journalist Oriana Fallaci criticizing Islamic fundamentalism and defending the United States in the wake of the Sept. 11 attacks. (Reuters/MSNBC, Jun. 10)(& welcome InstaPundit readers). (DURABLE LINK)
June 11-12 — Malpractice crisis latest. More problems with the notion of suing our way to quality medical care: Philadelphia’s Jefferson Hospital, citing rising malpractice insurance bills, has laid off 99 workers and eliminated 80 vacant jobs. (Linda Loyd, “Jefferson Hospital cuts 179 positions”, Philadelphia Inquirer, May 21). Brandywine Hospital, which operates the only trauma center in Chester County, Pa., said it would temporarily close its center, with the result that “trauma patients — the most severely injured accident victims — will be diverted to trauma centers at hospitals in surrounding counties.”. It blamed malpractice costs for difficulty in recruiting qualified physicians (Josh Goldstein, “Hospital closing trauma center”, Philadelphia Inquirer, Jun. 5). The closure of a Wilkes-Barre ob/gyn practice typifies the forces driving doctors out of Pennsylvania, according to the Wilkes-Barre Times Leader (M. Paul Jackson, “Frustrated doctors look to quit area”, May 1). The supply of neurosurgeons in central Texas is likewise under pressure, resulting in the family of an accident victim’s “being told a city of Austin’s size had no spine surgeon available when they desperately needed one”. (Mary Ann Roser, “Neurosurgeons in short supply”, Austin American-Statesman, May 19). Update: Francis X. Clines, “Insurance-Squeezed Doctors Folding Tents in West Virginia”, New York Times, Jun. 13). (DURABLE LINK)
June 11-12 — Flash: law firm with sense of humor. This one’s been around for a while, but we’ve never paid it due tribute: Denver’s Powers Phillips maintains the only law firm website we’ve seen that’s laugh-out-loud funny (and even manages to tell you a lot about the firm) (& update:Metafilter thread). (DURABLE LINK)
June 11-12 — “San Francisco Verdict Bodes Ill for Oil Industry”. Oil refiners are unhappy about a recent verdict in which a West Coast jury declared that the gasoline additive MTBE, which has a nasty tendency to seep into water tables, is defective and should never have been marketed. The refiners have contended that the federal government itself pushed the industry into adding MTBE to gasoline by way of the Clean Air Act’s 1990 amendments, which mandated the use of reformulated and oxygenated gas to reduce air pollution. At least two earlier courts did accept that defense, but now the industry may stand exposed to potential billions in damages. (June D. Bell, National Law Journal, May 3). Background: Energy Information Administration, “MTBE, Oxygenates, and Motor Gasoline” (Mar. 2000). (DURABLE LINK)
June 11-12 — Welcome “Media Watch” (Australia). On the Australian Broadcasting Corp. program, which monitors the press, Steve Price traces the circulation of the much-forwarded “Stella Awards”, a list of (fictitious, invented) outrageous lawsuits (see Aug. 27, 2001) (June 10). (DURABLE LINK)
June 28-30 — Lawyer’s 44-hour workday. “Cook County State’s Attorney Dick Devine is investigating charges a lawyer routinely billed the state’s child welfare agency for more than 24 hours’ work a day on uncontested adoptions.
“According to records obtained by Cook County Public Guardian Patrick Murphy, Joyce Britton had a busy week in April 2001: On Monday, April 9, she worked 34 hours. On Tuesday, she worked 44 hours. On Wednesday it was 29; 33 on Thursday, 25 on Friday, 42 on Saturday. … Britton billed the agency $862,000 for fiscal years 2000 and 2001. The second-most-active attorney handling uncontested adoptions billed $285,000.” (Abdon M. Pallasch, “Did adoption lawyer really work 44 hours in one day?”, Chicago Sun-Times, Jun. 25). (DURABLE LINK)
June 28-30 — Tobacco settlement funds go to tobacco promotion. An investigation by the Charlotte Observer finds that of the $59 million that the state of North Carolina has spent so far in proceeds from the tobacco settlement, nearly three-quarters — “about $43 million — has gone toward production and marketing of N.C. tobacco”. (Liz Chandler, “N.C. spends settlement on tobacco, not health”, Charlotte Observer, Jun. 23) (via Andrew Sullivan — scroll to third item). (DURABLE LINK)
June 28-30 — Ambulance driver who stopped for donuts loses suit. Sad news for the hero of our Nov. 2-4 item: “A federal judge has dismissed a lawsuit filed by a former ambulance driver who claimed he was wrongfully fired after stopping for doughnuts while transporting a patient to a hospital.” Larry Wesley “stopped for doughnuts in July 2000 while he was taking an injured youth to Ben Taub Hospital” and was fired after the boy’s mother complained. U.S. District Judge Lee Rosenthal “ruled that Wesley’s claims that other employees received lesser sanctions were not supported by the record, and he also failed to show that he was treated more harshly than other drivers.” (“Judge dismisses lawsuit filed by ambulance worker fired for doughnut stop”, AP/KRTK Houston, Jun. 27). (DURABLE LINK)
June 28-30 — More on gambling as next-tobacco. The Newark Star-Ledger‘s take; quotes our editor (Judy DeHaven and Kate Coscarelli, “Gaming Industry Could Be Next Target of a Big Tobacco-Type Lawsuit”, Newhouse News Service, Jun. 24)(see May 20-21). (DURABLE LINK)
June 27 — Pledge marathon. Even Justice William Brennan seemed to recognize that it tends to damage the good name of religious unbelief to associate it in the public mind with theories of hair-trigger unconstitutionality which encourage running to court over the most minute details of official ceremony. See Eugene Volokh (multiple posts); “One Nation Under Blank” (editorial), Washington Post, Jun. 27; Megan McArdle (and reader comments); Walter Dellinger, “Logically Speaking, the 9th Circuit Doesn’t Exist”, Slate, Jun. 27; David G. Savage, “9th Circuit just following form”, L.A. Times/ Houston Chronicle, Jun. 26. Update: also see columns by Steve Chapman, “Coming to terms with our Constitution”, Chicago Tribune, Jun. 30; Jonathan Foreman, “The real pledge problem”, New York Post, Jul. 1. (DURABLE LINK)
June 26-27 — “Win Big! Lie in Front of a Train”. Per a case summary in a recent New York Law Journal, “A State Supreme Court jury in Manhattan had awarded $14.1 million to a woman who was hit by an E train. The accident occurred on May 3, 2000, in a subway tunnel just north of the 34th Street station on the Eighth Avenue line. … What was she doing in that strange place to begin with? It seems the woman, then 36, had entered the tunnel and lain down on the tracks. The police concluded later that she was trying to kill herself. She denied it, though she also said she could not remember how she had ended up there.” No wonder the Bloomberg administration is pushing municipal tort reform (Clyde Haberman, New York Times, Jun. 25)(see also Oct. 23, 2001, Dec. 17, 2001). (DURABLE LINK)
June 26-27 — Asbestos: saving the Crown jewels? “In a decision that is sure to grab the attention of the asbestos personal injury bar, a Philadelphia Common Pleas judge has dismissed Crown Cork & Seal as a defendant in 376 pending asbestos cases. Judge Allan J. Tereshko found that Philadelphia- based consumer packaging company Crown Cork & Seal qualifies for relief under a new Pennsylvania law that limits the successor liability of asbestos defendants whose liability results only from merging or acquiring companies that produced asbestos products. Under the law, the company must be incorporated in Pennsylvania prior to May 2001 and must show that its liabilities in asbestos lawsuits have equaled or exceeded the ‘fair market value’ of the company whose acquisition resulted in the successor liability.” (Shannon P. Duffy, “Pennsylvania Court Upholds Law Limiting Asbestos Liability”, The Legal Intelligencer, Jun. 13)(see Jun. 27, 2001). (DURABLE LINK)
June 26-27 — “Ex-Teach’s Suit: Kids Abused Me”. Sued if you do, sued if you don’t dept.: trial is set to start today in Brooklyn “in a ground-breaking lawsuit filed by a former special education teacher who charges he was harassed by students. … Vincent Peries, who is from Sri Lanka, says students at Francis Lewis High School in Queens mimicked his accent, tossed paper balls at him,” and made fun of his ethnic background. “School officials don’t deny Peries was harassed — but argue that they can’t discipline special ed students for slurring a teacher. ‘This is because students with that classification have already been identified as having behavioral problems, and the verbal misconduct might be considered a manifestation of their disability,’ city lawyer Lisa Grumet wrote in court papers. Special ed students can be suspended only for incidents involving physical violence, drugs or a dangerous weapon, according to Board of Education regulations.” (John Marzulli, New York Daily News, Jun. 25)(& welcome Joanne Jacobs readers) (& update Jul. 24; city settles with him for 50K). (DURABLE LINK)
June 26-27 — “‘Vexatious litigant’ vows he’ll keep coming back”. Portrait of a Texas frequent litigant who’s filed more than twenty lawsuits over the past two years, against a list of defendants that includes more than a dozen judges and assorted other officials. Among factors working in his favor, aside from our general lack of a loser-pays rule: “pauper status” rules providing for the waiver of filing fees, and a lack of cross-checking that might allow the clerk in one county to learn that Mr. O’Dell is under a court order handed down in another county to petition for approval before filing any more suits in the state. (Lisa Sandburg, San Antonio Express-News, Jun. 24). (DURABLE LINK)
June 24-25 — Reparations roundup. Someone should start a weblog devoted to reparations links, it’d be easy to fill:
* In the fall of 2000, ABC’s “20/20” and New York Times reporter Barry Meier distinguished themselves by collaborating on a devastating exposé of “personal injury lawyer Edward D. Fagan, [who] recreated himself four years ago as [a] media-savvy figure behind huge lawsuits on behalf of Nazi victims” as the Times‘s abstract puts it. The investigation (to quote ABC) “found serious questions being raised about this so-called savior, now accused of ignoring and neglecting some of the very clients he had promised to help”. ABC interviewed well-known legal ethicist Stephen Gillers, who spoke in startlingly blunt terms of his opinion of Fagan’s client-handling record (“I think it’s despicable”; “This is client abuse, in my view, and it should not be allowed to continue”.) As for Fagan’s allegedly pivotal role in developing the WWII claims, “‘We essentially worked around him,’ says New York University law professor Burt Neuborne. ‘I mean, he was, he was there, but, but he played, if I tell you zero, I mean zero role in developing the legal theory, in presenting the legal theory, and in participating as a lawyer,’ says Neuborne.” (Brian Ross, “A Case of Self-Promotion?”, ABCNews.com, Sept. 8, 2000; Connie Chung, Sam Donaldson and others, “The Survivors” (transcript), ABCNews “20/20”, Sept. 8, 2000; Barry Meier, “An Avenger’s Path: Lawyer in Holocaust Case Faces Litany of Complaints”, New York Times, Sept. 8, 2000 (abstract leads to fee-based archive); Barry Meier, “Judge Warns Lawyer to Pay Past Penalties”, Sept. 13, 2000 (same)).
But credulity springs eternal — at least in those portions of the press not industrious enough to do a Google search or two to check out the background of a lawyer re-emerging into the headlines. Last week, Fagan was all over the papers announcing that he was going to file reparations suits against Western corporations on behalf of victims of the late apartheid regime in South Africa. Britain’s Observer swallowed his pitch whole, bannering its article “Lawyer who championed those who suffered in the Holocaust fights for South Africa’s oppressed” and calling Fagan the “American lawyer who won compensation for Holocaust victims”. We’re sure that would come as news to Prof. Neuborne. (Terry Bell, “Apartheid victims sue Western banks and firms for billions”, The Observer, Jun. 16).
* On New York’s Niagara Frontier: “Thousands of Grand Islanders were thankful and relieved Friday after a federal judge ruled that the Seneca Indians do not own the land beneath their homes, businesses and public buildings”. U.S. District Judge Richard C. Arcara ruled that not only did the Seneca tribe relinquish any legal claim they might have had to the relevant tracts of New York state way back in 1764, but “there is no archaeological evidence that the Senecas ever actually set foot on the Niagara Islands.” But landowners on the island are nowhere near achieving clear title to the properties they once thought they owned, since the Senecas vow to appeal. (Dan Herbeck and T.J. Pignataro, “Sigh of relief”, Buffalo News, Jun. 22).
Meanwhile, litigation by other tribes continues to wreak havoc across a wide swath of New York State (see Nov. 3-5, 2000 and links from there). Last fall another such case ended with a federal judge’s ruling in favor of the Cayuga tribe, which 200 years ago sold the 64,000-acre tract to the state in violation of the U.S. Trade and Intercourse Act. The verdict was $36.9 million to which the judge added $211 million in interest for a grand total of $247.9 million, considerably below the $2 billion that the tribe’s lawyers had been asking for, a request that had reflected the tendency of a sum starting off long enough ago to grow to the sky through the miracle of compound interest. (Margaret Cronin Fisk, “200-Year-Old Land Dispute Nets $247.9 Million”, National Law Journal, Oct. 17). See also John Caher, “New York State May Be Solely Liable for Indian Land Claims”, New York Law Journal, Apr. 2 (suit by Oneidas “demand ‘ejectment’ of the City of Syracuse”). Update Jun. 29, 2005: Second Circuit panel throws out Cayugas’ suit and damage award as inconsistent with recent Supreme Court decision in City of Sherrill.
* Ah, the healing and emollient qualities of the reparations movement, which holds out the promise of putting racial frictions finally behind us: “A new Mobile Register – University of South Alabama survey shows that while 67 percent of black Alabamians favor the federal government making cash payments to slave descendants, only 5 percent of white Alabamians agree. Among the supporters is J.L. Chestnut, a black Selma lawyer who is part of a national legal team preparing to file reparations litigation. … ‘In five years of polling in Alabama, I have never seen an issue that was so racially polarizing,’ Nicholls [Keith Nicholls, the University of South Alabama political science professor who oversaw the survey] said. He added that the mere mention of reparations and an official U.S. government apology for slavery — another issue addressed in the poll — caused many white respondents to get so angry that they had trouble completing the interview.” (Sam Hodges, “Register-USA poll: slavery payments a divisive question”, Mobile Register, Jun. 23). (DURABLE LINK)
June 21-23 — “Trolling for litigation on eBay”. Via Ernie the Attorney: “Someone bought a packaged cheese stick that supposedly had a human hair. They want to sue, and have posted the following description of the item bid for on Ebay: ‘You are bidding on the opportunity to represent us in a civil proceeding. Naturally, our discovery of this apparently tainted product has traumatized us, and we may never be able to truly enjoy cheese (or other dairy products, or other processed foods, or other food for that matter) ever again. We reserve the right to review winner’s qualifications upon auction end. Winner must be a licensed attorney.” Before you ask, no, we don’t know whether the person who posted the auction is serious or not, though our guess is that they’re not. Update 20:45 EDT Friday: it looks as if the eBay authorities have removed the auction. It was discussed by users on eBay Forums (Jun. 21). (DURABLE LINK)
June 21-23 — Tobacco fees: a judge gets interested. Here’s one to watch closely: a Manhattan judge may finally be getting ready to delve into some of the ethical questions raised by the 1998 tobacco settlement, or at least the $25 billion portion of it that covers New York state. The judge “has asked the New York attorney general’s office and several law firms to justify $625 million in attorney fees awarded” as part of New York’s settlement with the tobacco industry (see May 11, 2001). “Citing unspecified ethical concerns, Supreme Court Justice Charles E. Ramos ordered state lawyers and attorneys from six firms that represented the state to explain why the fees should not be set aside. One ground for vacating the fees, the judge said, could be that the arbitrators who awarded them may have ‘manifestly disregarded well established ethical and public policies.’ Ramos suggested that the court had the power to not only ask a new panel of arbitrators to determine reasonable fees, but to vacate the entire $25 billion settlement, approved by another judge in 1998, if such action was warranted. He also said the issue could be referred to the Departmental Committee on Discipline and require the outside firms to produce time sheets detailing their roles in the litigation.” (Tom Perrotta, “New York Judge Cites Ethics Concern Over Tobacco Case Fees”, New York Law Journal, Jun. 20). (DURABLE LINK)
June 21-23 — 11th Circuit reinstates “Millionaire” lawsuit. “A federal appeals court has reinstated a lawsuit alleging that ABC discriminates against disabled people trying to become contestants on ‘Who Wants to be a Millionaire.’ The 11th U.S. Circuit Court of Appeals decided that the lawsuit contained a valid claim that the show’s qualifying system, which uses touch-tone phones, violates the Americans with Disabilities Act.” (see Nov. 7, 2000; Brian Bandell, “Lawsuit Reinstated Against ABC Show”, AP/New York Post, Jun. 19; Susan R. Miller, “Disabled Floridians Get Shot at ABC’s ‘Millionaire'”, Miami Daily Business Review, Jun. 21). (DURABLE LINK)
June 21-23 — Welcome Grouse.net.au readers. We’re picked as link of the day on this Australian site for June 21. Also for Jun. 21, we’re Mr. Quick’s “Link of the Day”. Among blogs sending us visitors lately: Tres Producers, Flyover Country, Aaron Haspel’s God of the Machine, Hollywood Investigator, Bob Owen of the Twin Cities, Ross Nordeen, Ravenwolf, Jon Garthwaite’s TownHall C-Log, Junkyard Blog, Now You Listen to Me Little Missy, and many others, as well as the links page of premier Cathblogger Amy Welborn. (DURABLE LINK)