Overlawyered: Chronicling The High Cost Of Our Legal System

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August 2002 archives, part 3


August 30-September 2 — Banish those desk photos of spouse at beach. A few years ago, when a Nebraska graduate student was targeted with a complaint from a university colleague for displaying a photo at his workplace of a woman in skimpy beachwear who happened to be his wife, some assumed it was a fluke case. But it wasn’t. “[D]esktop photographs of bikini-clad girlfriends or bare-chested husbands … could result in sexual harassment claims, lost productivity or a tarnished company image, say employment experts. ‘Employers have a duty to provide a work environment that is not objectionably and subjectively hostile, so the days of pinups in the locker room should be past,’ says John Lowe IV, an attorney in Kegler Brown Hill & Ritter’s Columbus labor and employment practice group.” Yep, they’re perfectly serious (Betsy Butler, “Dress code good strategy for desktop photo display”, Columbus Business First, Aug. 23). (DURABLE LINK)

August 30-September 2 — Intel sued in notorious county. Lawyers have filed a lawsuit seeking class-action status on behalf of personal computer owners “against Intel, Gateway, and Hewlett-Packard alleging the companies misled them into believing the Pentium 4 was a superior processor to Intel’s own Pentium III and AMD’s Athlon. The complaint — Neubauer et al v. Intel et al — was filed June 3 in the Third Judicial Circuit in Madison County, Illinois.” (Tom Mainelli, “Intel, PC Makers Sued Over P4 Performance”, PCWorld.com, Aug. 16; discussion, StorageReview forums). Litigation buffs will immediately recognize the chosen venue, Madison County, Ill., as being perhaps the most celebrated destination in the country for class-action “forum-shopping”, its courts recognized as unusually accommodating to the designs of the lawyers who file such suits. For one recent view of the county’s reputation, see: Adam Liptak, “Court Has Dubious Record as a Class-Action Leader”, New York Times, Aug. 15 (reg) (DURABLE LINK)

August 30-September 2 — Second Circuit: we mean business about stopping frivolous securities suits. The New York law firm of Jaroslawicz & Jaros “faces nearly $200,000 in sanctions after a federal appeals court said it had not received a severe enough penalty for an abusive securities fraud suit.” The 2nd U.S. Circuit Court of Appeals has weighed in three times on the case; among its rulings was that “the presence of some nonfrivolous claims in an otherwise frivolous complaint is not sufficient, standing alone, to establish that either the violation of Rule 11 [the main federal rule providing sanctions against meritless litigation] was de minimis or that the sanctions would create an unreasonable burden, for purposes of overcoming the statutory presumption of the PSLRA [Private Securities Litigation Reform Act of 1995].” (Tom Perrotta, “2nd Circuit Imposes Stiff Fine in Securities Fraud Case”, New York Law Journal, Aug. 27). Mr. David Jaroslawicz, of Jaroslawicz & Jaros, last figured in these chronicles on Jan. 17, 2000, after he was quoted in the New York Observer as hoping to spearhead a wave of sexual-harassment suits against the then-flush firms of New York’s Silicon Alley. (DURABLE LINK)

August 29 — 7.000 missing colors, many of them crisply green. Last week Palm, the handheld computer maker, conceded that although it had advertised its m130 model, introduced in March, as displaying 65,536 different colors or color combinations, the actual number is a mere 58,621 — “approximately 11 percent fewer color combinations than we had originally believed”, as a Palm spokeswoman said. Attorneys with the Philadelphia law firm of Sheller, Ludwig & Bailey promptly filed a lawsuit in Santa Clara, Calif. Superior Court seeking class-action status on behalf of Palm’s customers, traumatized as they no doubt were by this hue shortfall. Legal experts predict that Palm will most likely settle rather than face the legal uncertainties and bad publicity of a protracted suit, but that customers shouldn’t expect anything more than coupons, future discounts and the like. “It’s hard to put a dollar figure on how much you have been damaged because your computer won’t do some particular feat you might never ask it to do anyway,” said Norman Spaulding, a professor at the Boalt Hall School of Law at the University of California at Berkeley. (Elisa Batista, “Palm Handed Suit Over Colors”, Wired News, Aug. 24). (DURABLE LINK)

August 29 — Discrimination suit roundup. “The state of New Jersey has agreed to pay $250,000 to settle claims by three black men who said they were victims of racial profiling by the New Jersey state police. Attorney Stefan Presser of the American Civil Liberties Union of Pennsylvania said the settlement is the largest ever in a civil rights suit in which the victims were neither physically injured nor jailed” and says New Jersey should adopt it a model for other cases where black motorists were stopped and questioned without adequate justification. (Shannon P. Duffy, “New Jersey Settles Profiling Suit for $250,000”, The Legal Intelligencer, Aug. 22). The Taco Bell chain has agreed to pay $160,000 to settle the racial discrimination claims of a St. Louis family who, traveling 24-strong on a chartered bus through Cullman, Ala. in July 1998, waited about 15 minutes after requesting service. Each of the 24 will get about $1,000; the settlement “includes another $111,000 for attorney expenses and more than $17,000 in attorney fees.” (“Taco Bell settles discrimination lawsuit”, AP/NBC13.com, Aug. 26). And New York gubernatorial hopeful Andrew Cuomo, the former federal housing secretary and gun-suit backer, has called for legislation to make discrimination a felony — we’ll sleep a lot sounder knowing errant taco-chain managers are behind bars. (“Cuomo: Make Discrimination a Felony”, News12/The Bronx, Aug. 25). (DURABLE LINK)

August 28 — “Parents suing youth football league”. Texas: “Parents of a fifth-grade boy asked the courts Tuesday to throw a yellow penalty flag on Katy Youth Football over a rule change that switched players to different teams after practice started. In a lawsuit filed Tuesday, an attorney sued the Katy Youth Football league on behalf of his son. The boy had played with his grade-level team before being switched because of age to a junior high-level group with “significantly larger” players. Russell Van Beustring and his wife, Pamela Van Beustring, are asking a judge to order the league to revert to rules in place when children registered in May.” (Jo Ann Zuniga, Houston Chronicle, Aug. 20). (DURABLE LINK)

August 27 — Ford rollover verdict: you read it here first. We usually refrain from running items pointing out that we covered one or another litigation story before the major media picked it up. However, we can’t help noting for the record that we were three years (!) early in beating the New York Times to the facts of the case they gave front page treatment to yesterday, namely Romo v. Ford Motor, “the largest punitive award ever affirmed by an American court in a personal injury case: $290 million to the family of three people killed in the rollover of a Ford Bronco.” (Ford has asked the California Supreme Court to review an intermediate court’s upholding of the award.) We’re glad to see this case finally getting some attention, and glad to find the Times highlighting the same angle of the case that we found most striking, the very strange goings-on in the jury room: one juror recounted to her colleagues a gruesome, omen-like dream revealing Ford’s guilt, while another juror passed on to her colleagues the contents of a badly misremembered “60 Minutes” episode also supposedly establishing the carmaker’s malign state of mind. The Times sees all this as reason to hold a public debate about whether juries’ determinations of such issues as punitive damages are sufficiently reliable to count as law at all. We don’t mind having such a debate — we just wonder why we couldn’t have had it three years ago, when all the same facts were on the public record (see this site’s entries for Aug. 24, 1999 and Sept. 17-19, 1999). (Adam Liptak, “Debate Grows on Jury’s Role in Injury Cases”, New York Times, Aug. 26 (reg))(& update Oct. 24: California Supreme Court leaves verdict intact)

P.S. While on the subject of juror misconduct, Vanderbilt University law professor Nancy J. King found in a study “that modern-day judges, while acknowledging that sleeping jurors are a fairly common sight, do not see them as a serious threat to the fairness of trials.” So comforting! “In June, two members of the jury that convicted the accounting firm [Arthur Andersen] of obstruction of justice told Texas Lawyer, an affiliate of The National Law Journal and law.com, that two colleagues slept through parts of the six-week trial, and that the alleged nappers were in such a fog that one thought NASA was involved in the case and the other believed that prosecution star witness David Duncan was the one on trial.” In a 1987 case, Tanner v. United States, 483 U.S. 107, “a majority composed of the U.S. Supreme Court’s most conservative members” declined to overturn Anthony Tanner’s conviction for mail fraud despite testimony from two jurors that several of their colleagues had dozed off; one juror in his affidavit said “the jury was on one big party,” and that consumption of marijuana, liquor and cocaine at lunch all contributed to later drowsiness. (Gary Young, “Asleep at the Trial”, National Law Journal, Aug. 21). (DURABLE LINK)

August 27 — OxyContin wins one in West Virginia. A judge has dismissed a case filed against Purdue Pharma, maker of the pain medication, on behalf of the estate of a 41-year-old drug abuser who died after crushing the pills and injecting them into her bloodstream. The Charleston Daily Mail editorially draws some lessons about personal responsibility (Aug. 23)(see Apr. 10 and links from there). (DURABLE LINK)

August 26 — “Junk fax” suit demands $2 trillion. The Federal Communications Commission recently took enforcement action against the enterprise Fax.com for (it said) extensively violating the federal law banning unsolicited commercial fax-sending. Last week Silicon Valley entrepreneur Steve Kirsch (more) and another plaintiff filed suits demanding the federal statutory penalty of $500 for each unsolicited fax sent, trebled to a sum he estimates at $2.2 trillion; Kirsch says Fax.com boasts that it sends 3 million faxes a day. The gross national product of all countries on the globe stands at $29 trillion or thereabouts, which would leave the plaintiffs if successful with a claim on something like 7 percent of the earth’s annual output if they could collect it. And although it is not clear how many assets Fax.com will be found to have at the end of a suit, Kirsch is also suing for $500 per offending transmission Fax.com’s telecommunications provider, Cox Communications, as well as its advertisers. “‘We believe that there are companies with substantial assets in this group. We will seek treble damages of $1,500 per unsolicited fax from Fax.com and Cox Communications,’ Kirsch said in a statement.” (Bob Egelko, “2 trillion junk fax suit: Silicon Valley man demands Fax.com end unsolicited messages”, San Francisco Chronicle, Aug. 22; Andrew Quinn, “Lawsuits Seek $2.2 Trillion over ‘Junk’ Faxes”, Reuters/IEEE Spectrum, Aug. 23). Cox Communications is a NYSE-listed company with assets of $25 billion, according to Fortune. More on junk-fax suits as “Powerball for the clever”: July 24, 2001 and links from there. Fax.com’s own website seems to be doing its best to portray the company as dedicated to charitable endeavors for the recovery of missing children, with a remarkable lack of emphasis on how it actually makes its money. (DURABLE LINK)

August 26 — R.I.: no more cheap car leases? “A Rhode Island jury has held a car-leasing company vicariously liable for the negligence of a leased car driver, resulting in a $28 million personal injury award. The verdict against the Chase Manhattan Automotive Finance Corp. — one of the largest personal injury verdicts in the state’s history — followed the Rhode Island Supreme Court’s April ruling that long-term car-leasing companies can be held liable for the actions of leased car operators under the state’s owner and lessor liability statutes.” A lawyer for Chase warned of the impact on consumers: “‘There are about one million people in Rhode Island,’ he said. ‘Assuming only 50,000 people lease their cars, leasing can become prohibitively expensive’ if lessors have to pass on the cost of multimillion-dollar verdicts.” (Annie Hsia, “Car-Leasing Company Held Liable in Crash”, National Law Journal, Aug. 19). Updates: see Mar. 12-14 and May 21, 2003. (DURABLE LINK)

August 23-25 — Prominent French author sued for “insulting Islam”. In France, the latest chapter in the hate-speech-laws vs. free-speech saga: “Prize-winning French novelist Michel Houellebecq is being sued by four Islamic organisations in Paris after making ‘insulting’ remarks about the religion in an interview about his latest book. The action against Mr Houellebecq, 44, is being launched on 17 September by plaintiffs including Saudi Arabia’s World Islamic League and the Mosque of Paris.” The plaintiffs have also brought charges against a literary magazine, Lire, in which Mr. Houellebecq reportedly said that reading the Koran is “so depressing” and called Islam “the stupidest religion”. (“Author sued over Islam ‘insult'”, BBC, Aug. 22)(see Jun. 11-12). Update Oct. 25-27: Houellebecq acquitted. (DURABLE LINK)

August 23-25 — Canada: cash demanded for drug users and panhandlers inconvenienced by film crews. In Vancouver, B.C., which has become a popular site for Hollywood location filming, a group representing sex workers, drug users and homeless people has demanded compensation for film crews’ tendency to displace or disrupt illegal street activity. “The Vancouver Area Network of Drug Users, which represents about 1,000 residents of the seedy Downtown Eastside, has sent a letter demanding compensation to 30 production firms. They include Club Six Prods., currently filming MGM’s ‘Agent Cody Banks’ starring Frankie Muniz and Angie Harmon.” The letter states: “Sex trade workers must be compensated for displacement they experience at your hands in the same manner you would compensate a business if you were to use their locale during operating hours. The same must hold true for homeless people you push from beneath a bridge or doorway, and drug users you move from a park.” The letter also asks for financial compensation for loss of residents’ panhandling opportunities. (Don Townson, “Canadian Hookers Campaign Against Hollywood”, Variety/Yahoo, Aug. 21). (DURABLE LINK)

August 23-25 — Don’t ban peanut butter from schools. A small number of kids have serious peanut allergies, and schools — under pressure from activist parents and fearful of litigation — are beginning to ban the nutritious foodstuff from their cafeterias and halls. Don’t be stampeded, advises columnist Dennis Prager: there would be less overall disruption to children as a group if schools just made a point of keeping a stock of epinephrine, the antidote to allergic shock, on hand (syndicated/Town Hall, Aug. 21). (DURABLE LINK)

August 22 — Defying the link-banners. David Sorkin, “associate professor of law at The John Marshall Law School in Chicago, Ill., is the man behind Don’t Link to Us, a Web site that exists merely to flout what it terms ‘stupid linking policies.’ Sorkin’s site was launched in reaction to recent legal decisions in which courts upheld Web site terms and conditions that prohibited or restricted links,” including a decision in which a Danish court ruled that the NewsBooster site could not link to internal story pages within various news organizations’ sites. (Paul Festa, “Site fights ‘stupid linking'”, ZDNet News, Aug. 21). (DURABLE LINK)

August 22 — Jury clobbers NYC with $21 million slip/fall verdict. “A Manhattan jury has awarded more than $21 million to a woman who tripped over a four-inch protrusion of a broken parking sign and suffered serious head injuries as a result — the largest slip-and-fall verdict ever leveled against the city. Aides to Mayor Bloomberg are calling the verdict excessive, and have vowed to use it to illustrate why limits need to be placed on the city’s liability in personal injury cases.” (Errol Louis, “A Record Liability Verdict Is Brought In Against City”, New York Sun, Aug. 21). More coverage: Susan Huners, “Sidewalk Hazard Costs NYC $21 Million”, National Law Journal, Sept. 12. (DURABLE LINK)

August 22 — We did it all for the public health, cont’d. Although fewer than 300 acres of tobacco are grown in Alabama, “Tobacco farmers in Alabama have received $500,000 from the national tobacco settlement. … [Meanwhile,] only $350,000 is being spent for anti-smoking programs, with most of that aimed at young people. Let that sink in: More money from Alabama’s portion of the national tobacco settlement goes to people who grow tobacco than to those who are trying to get people to kick their tobacco habits.” (“Strange truths” (editorial), Birmingham News, Aug. 21). (DURABLE LINK)

August 21 — Judge questions “shotgun” naming of 282 defendants in trailer-mold case. According to a May 22 report in the Baton Rouge Advocate, the Fifth Circuit has agreed to examine a dispute between Lafayette, La. attorney Barry Domingue and U.S. District Judge Tucker Melancon, who is hearing a case filed by Domingue against no fewer than 282 manufacturers. The lawsuit, which seeks certification as a class action, purports to represent plaintiffs who “unknowingly bought poorly made manufactured homes defective in design, composition and construction. The lawsuit alleges that the defective design allowed condensation to create formation of a toxic mold in the walls, making occupants sick. The companies have denied that they produce an inferior product, and they are seeking dismissal of the case. During a hearing last month, Melancon ordered Domingue to disclose to the court all investigative files and any other materials used to develop the lawsuit. The judge said Domingue would have to explain why he included the 282 companies as defendants, even though many of them haven’t done business in Louisiana and many others have gone bankrupt. The judge said Domingue would be required to pay legal fees of any companies included in the lawsuit without proper justification.” The judge also expressed skepticism toward Domingue’s contention that the manufacturers had collectively conspired to conceal the dangers of mold in trailers and were thus each open to suit. Domingue contends that Judge Melancon has become an advocate for the defense side in the litigation. (Bruce Schultz, “Lawyer attacks critical judge in mobile-home suit”, Baton Rouge Advocate, May 22). (DURABLE LINK)

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February 2002 archives


February 8-10 — Crumbs from the table. “A Las Vegas jury has found that two attorneys committed malpractice in their representation of a brain-damaged man in a personal injury suit. It awarded the man, Jason Nault, $3.3 million. The lawyers had reached a $17 million settlement that gave Nault only $2.5 million — compared with $6.6 million to his wife, from whom he’s now divorced, and $6.8 million to the lawyers.” Attorney W. Randall Mainor of Las Vegas’ Mainor Harris, who with partner Richard Harris was found liable, “insists that the ruling throws a wrench in attorneys’ personal injury work.” However, attorney Gary Logan, who represented Nault on the malpractice claim, “said of Mainor and Harris, ‘This kind of conduct is the reason people hate lawyers.’ … Among the breaches in professional conduct that Logan alleged — some of which were raised at trial and some that were barred — were that another attorney, Joe Rolston, received a $2.2 million referral fee without ever receiving consent of his brain-damaged client, Nault.” Mainor “said that the fee paid to Rolston was an association fee, not a contingency fee.” Nault’s parents began caring for him in 1997. (Elizabeth Amon, “Malpractice Suit Tags Las Vegas Attorneys”, National Law Journal, Feb. 6). Update Jan. 1, 2005: Nevada Supreme Court reverses jury verdict.

February 8-10 — Overlawyered film sets. According to intellectual property expert Larry Lessig, moviemakers “must now ‘clear’ every image that appears in their films, obtaining permission even for minor items like posters in a dorm room, the advertisement on a passing truck, or a can of Coke in someone’s hands. It used to be, Lessig reports, you only had to do this if the item was immediately recognizable; now you have to do it if it shows up in a single stop-motion frame. Even the designers of buildings and furniture included in movie scenes are trying to claim the right to stop films that contain images of their products without permission.” (Glenn Reynolds, “Rights and wrongs”, TechCentralStation.com, Feb. 6).

February 8-10 — “Judge orders God to break up into smaller Deities”. The Onion on antitrust law, and very funny, too (Jan. 30). While we’re at it: James V. DeLong of the Competitive Enterprise Institute comments on the proposed Microsoft settlement (Jan. 25).

February 8-10 — 2,000,000 + pages served on Overlawyered.com. Exact figures are not available because the more comprehensive of our counter programs has gone on the fritz, but we think our tally passed two million pages late last year and now stands above two and a quarter million. Thanks for your support!

February 6-7 — Vandal’s dad sues store over blaze. “The father of a teen who helped spark the fatal Father’s Day blaze has filed a $2 million lawsuit against the store where the fire started.” Silverio Moreno’s “son and another boy tipped over a loose-lidded gallon of gasoline while spraying graffiti behind the store.” According to columnist Andrea Peyser, the younger child “told investigators that when Moreno came looking for his son, and saw what the boys did, he said: ‘Don’t say anything about it.’ Now dad “is suing the elderly owner of Long Island General Supply Co. for $2 million – claiming the store ‘carelessly and negligently permitted the building to explode,’ causing Moreno permanent injuries.” The suit has raised the ire of some widows of NYC firefighters killed in the blaze, although they themselves, it should be noted, “plan to file negligence suits against the hardware store in the future and they have not ruled out taking action against the city, said their lawyer, Michael Block.” (Jessie Graham, “Outrage at Suit By Firestarter’s Dad”, New York Post, Feb. 1; Andrea Peyser, “Of All the Gall! His Kid Is a Vandal — And He’s Suing?”, New York Post, Feb. 1). (DURABLE LINK)

February 6-7 — Chickens are next. In the latest stage of its campaign to use litigation to do an end run around what it considers overly permissive federal environmental agencies, the Sierra Club is targeting Kentucky farmers who raise chicken under contract with Tyson Foods (see Dec. 7, 2000, on hog farming). The suit contends that broiler operations should be counted as industrial emitters of ammonia gas because the individual chickens … well, it’s too indelicate to explain. (James Bruggers, “Sierra Club vows suit over chicken farms and dust they produce”, Louisville Courier-Journal, Feb. 5).

February 6-7 — Your home, their right to enter. Suburban Naperville, Ill. has emerged as the latest target in disabled rights activists’ campaign to require newly built private houses to be wheelchair-accessible — and if you’re a new homebuyer who doesn’t care for the cost and design trade-offs implicit in that, tough, you shouldn’t consider the house yours just because you’re the one paying for it (see Dec. 4, 2001, on Santa Monica) (Karen Mellen, “Making all new houses ‘visitable'”, Chicago Tribune, Feb. 5)(& see update Mar. 6)(& letter to the editor, Apr. 11).

February 6-7 — “Every Man a Cyber Crook”. “Shortly after it enacted the federal computer crime law, Congress amended it to allow victims to sue their attackers in federal court for damages. It is now proving to be a costly mistake. … in practice, private litigants have rarely used the civil provisions to pursue computer hackers, who, after all, usually don’t have very deep pockets. Instead, unfettered by the Department of Justice’s interpretation of federal law, litigants have used the computer crime laws to go after computer hardware manufacturers for product liability, Internet companies for software design, spammers and protesters for commercial and other protected First Amendment speech, and website operators for the installation and tracking of computer cookies.

“These unintended uses of the computer crime statute, and the court’s permitting the suits to proceed in many cases, creates a genuine risk that ordinary business activity and protected speech will be deemed to rise to the level of a computer crime, subject to federal prosecution.” (Mark Rasch, SecurityFocus.com, Jan. 7).

February 4-5 — “‘Let’s Roll’ Trademark Battle Is On”. Why’d she have to hire that lawyer? No sooner does the widow of Flight 93 hero Todd Beamer set up a foundation to honor his memory than its lawyer announces that he’s having it apply for a trademark on the now-famous phrase “Let’s Roll”, so that anyone who wants to use the words on hats or t-shirts will have to fork over a royalty. Since September 11 numerous other individuals have also sought to copyright the phrase, although it was in common use before that date. (AP/Las Vegas Sun, Feb. 1).

February 4-5 — Element in $290,000 award: failure to meet Messiah in person. Dateline Salt Lake City: “A jury awarded $290,000 to two women who said they were deceived by a fundamentalist church whose leaders promised to produce Jesus Christ in the flesh. The True and Living Church of Jesus Christ of the Saints of the Last Days was ordered Monday to pay $270,000 to Kaziah Hancock and more than $20,000 to Cindy Stewart for fraud, breach of contract and intentional infliction of emotional distress.” In exchange for substantial financial contributions from Hancock and Stewart, church founder Jim Harmston had allegedly promised the women various benefits including “membership in heaven’s elite and the chance to meet Christ on earth”. (AP/Boston Globe, Jan. 30)(see June 6, 2001).

February 4-5 — Stop, they said. An assistant professor of political science at the University of Manitoba is reportedly “fighting a $40 traffic ticket in provincial court by launching a constitutional challenge of stop signs — claiming the message they convey is too vague. In what may be one of the strangest legal arguments ever heard in the halls of the downtown Law Courts, Rod Yellon is seeking to prove the word ‘STOP’ isn’t a sufficient warning to motorists.” (excerpt said to be from the Winnipeg Free Press; quoted in Fresh Hell blog, Jan. 5).

February 4-5 — Reparations madness: gypsy survivors sue IBM. Representatives of European gypsies orphaned in the Holocaust want money and an apology from IBM because one of its German subsidiaries, taken over by the Nazi government before World War II, sold punch-card machines used to administer the concentration camp system. (“Gypsies Sue IBM, Claiming Machines Helped Nazis”, AP/Law.com, Feb. 1).

February 1-3 — “Aborigines claim kangaroo copyright”. “In Australia, a group of Aborigines has lodged a high court writ, seeking to stop the government from using the kangaroo and the emu on the national coat of arms. The Aboriginal activists say the representation of the animals — which they regard as sacred totems — is a breach of copyright.” They accuse the Commonwealth of Australia of cultural theft. (BBC, Jan. 29).

February 1-3 — Suicide plane crash blamed on acne drug. When a Florida 15-year-old crashed a plane into a Tampa skyscraper, press accounts were quick to link the incident to the boy’s prescription for the drug Accutane. “As only a handful of media outlets bothered to report a week later, an autopsy showed no trace of the drug in the boy’s system. … If you go to a Web site with an innocuous-sounding name like http://www.accutane_suicide_help.com/ you’ll find you’ve actually come across a lawyer-referral service.” (Michael Fumento, “Bumps in the Night”, Reason Online, Jan. 23; “Tampa Crash Pilot Had Acne Drug Prescription”, AP/Washington Post, Jan. 9). “Rep. [Bart] Stupak’s [D-Mich.] hearings and the recent press stories have all left out one set of voices: the millions of Accutane users who have benefited from the drug.” (Jaime Sneider, “Skin Deep”, Jan. 23) Update Apr. 18: family sues.

February 1-3 — King Cake figurine menace averted. Columnist James Lileks recalls how things used to be with the famous King Cake baked in New Orleans for Mardi Gras: “Since they were the Real Thing, brought directly from N’Awlins, they had small plastic baby Jesuses (Jesii?) embedded in their doughy redoubts. Whoever cracked a molar on the extruded holy infant was obliged to buy the next King Cake. In these litigious days, the store-bought cakes cannot hide the child lest someone choke and sue, so the package explains the tradition, says that a coin can be substituted for the plastic baby — and the coin is sitting ON TOP of the cake, meaning no one will be stupid enough to take that piece.” (“The Bleat”, Lileks.com, Jan. 29).

February 1-3 — International tobacco suits: not quite such easy pickings. U.S. judges have so far not been particularly inclined to loot and expropriate the nation’s tobacco industry for the benefit of such foreign governments as Guatemala, Nicaragua, Ukraine, and Ecuador, which with help from some entrepreneurial-sounding U.S.-based lawyers have sought to duplicate the 1998 feat of the state attorneys general. (Matthew Haggman, “Brazilian City Joins List of Foreign Entities Suing U.S. Cigarette Makers”, Miami Daily Business Review, Jan. 11). For details on the suit filed by that very needy and deserving claimant, the government of Saudi Arabia, see Nov. 16, 2000 and Dec. 10, 2001.


February 20-21 — Updates. Further developments in stories familiar to our readers:

* Britain: “Five market traders — the so-called metric martyrs — have lost their High Court battle for the legal right to trade in pounds and ounces.” (see Dec. 15, 2001) (“Metric martyrs lose battle for pounds and ounces”, Ananova.com, Feb. 18)

* The Taco Bell chain has settled on undisclosed terms a lawsuit charging it with financial responsibility after several of its employees partied on their own time and one got into a fatal car crash; the suit charged that the employees had discussed liquor acquisition while working together at the restaurant (see Nov. 29, 2001) (Jeff Arnold, “Suit Against Taco Bell After Fatal Wreck Resolved”, Fort Smith (Ark.) Times-Record, Jan. 4; KTHV-TV (Little Rock), “Taco Bell Settles a Lawsuit Accusing Them of Contributing to the Death of a Teen”, Jan. 7).

* “Pacifiers, glow sticks and other paraphernalia associated with ‘rave’ parties cannot be banned from the gatherings,” federal judge Thomas Porteous has ruled in New Orleans, despite prosecutors’ contention that the funmakers are linked to drug use (see June 28, 2001) (“Rave Party Items Can’t be Banned Says Federal Judge”, WWL-TV (New Orleans), Feb. 4).

February 20-21 — Trial lawyer smackdown! According to Roll Call, Pascagoula, Miss. tort tycoon Dickie Scruggs has threatened never again to support Sen. John Edwards (D-N.C.) because of Edwards’ unfair treatment of federal appeals court nominee Charles Pickering. “If Scruggs follows through on his stated mission, it would deal a serious financial blow to Edwards, himself a former trial lawyer who has relied heavily on the legal industry to underwrite his burgeoning national ambitions. … While Scruggs himself has not been a direct financial backer of Edwards, lawyers have been the Senator’s single largest backer, and many of Scruggs’ friends are among Edwards’ supporters. In the 1998 election cycle he received $905,280 from lawyers and law firms, the fourth most of any candidate in that cycle, according to the Center for Responsive Politics.” (Paul Kane, “Edwards’ Tactics Draw Ire”, Roll Call, Feb. 18).

February 20-21 — Firehouse blues. Near Brighton, England, “A 5ft 1in firewoman who is too short to carry out some of her duties yesterday claimed sex discrimination after she was taken off active duty. … after a number of incidents in which she was not tall enough to handle equipment.” Katie Reid, 31, complained to an industrial tribunal that the East Sussex Fire Authority was sexually discriminatory in having “failed to accommodate her height when designing equipment and in the operation of fire appliances.” (Thomas Penny, “Tiny firewoman sues her brigade”, Daily Telegraph, Jan. 30) (via Bonehead of the Day). And authorities in Anchorage, Alaska have ordered the removal of girlie magazines from firehouses, explaining that the city could be at risk of losing a lawsuit if it lets them stay; a former firefighters union president said he was told that even tamer fare like Maxim has to go. (“Anchorage tells fire halls to eliminate risqué magazines”, JuneauEmpire.com, Feb. 18). (DURABLE LINK)

February 20-21 — “Bush Budget Surprise: $25M for Tobacco Suit”. Appalling: as part of a big increase sought for the budget of the Justice Department’s Civil Division (from $170 million to $240 million), the Bush administration has bowed to its enemies and endorsed the Clinton administration’s lawless federal expenditure recoupment suit against tobacco companies. Who knew John Ashcroft and the Bush White House were this easy to push around? (Vanessa Blum, Legal Times, Feb. 15). Plus: we highly recommend political scientist Martha Derthick’s new book on the tobacco litigation, Up in Smoke: From Legislation to Litigation in Tobacco Politics (order it from CQ Press). Derthick, professor emerita at U.Va. and also with the Brookings Institution for many years, assembles a truly damning indictment of the ways tobacco lawyers and state attorneys general managed to usurp powers constitutionally reserved to lawmakers. (DURABLE LINK)

February 18-19 — “The $200 Billion Miscarriage of Justice”. Best article we’ve seen in quite a while on the asbestos outrage: “the ultimate mass farce … The avalanche of new claims being brought by ever less impaired plaintiffs alleging ever more marginal medical conditions caused by ever more fleeting exposures to asbestos dust has triggered a new wave of bankruptcies … Like the employees of Enron, employees of [newly bankrupted big companies like Owens Corning and Federal-Mogul] have seen their retirement savings vanish in a flash. … But those employees’ losses have thus far gone unbemoaned by Congress.” (Roger Parloff, Fortune, March 4).

February 18-19 — Overprotecting the kids. “A significant body of research evidence now indicates that there has been a drastic decline in children’s outdoor activity and unsupervised play. For example, it has been calculated that the free play range of children — the radius around the home to which children can roam alone — has, for nine-year-olds in the UK, shrunk to a ninth of what it was in 1970. Evidence also shows that more and more of children’s activities are being organised or supervised by adults.” Yet the most often cited reasons for parental anxiety, road accidents and abduction by strangers, are rarer than ever.

“Local authorities, educational staff or outdoor activity instructors are too often blamed for accidents — which can only make them more cautious about providing challenging activities for children. There have been a rising number of litigations against providers of play facilities and organisers of adventure pursuits. Perhaps most damaging is that a climate has been created in which all unsupervised play is regarded as high risk, and parents or teachers who allow it are seen as irresponsible.” (Jenny Cunningham, “Play on”, Spiked Online, Jan. 3) (via InstaPundit).

February 18-19 — “Toyota buyers’ suit yields cash — for lawyers”. Under a newly approved class action settlement, thousands of customers will get $1,200 coupons, rather than cash, from a Memphis Toyota dealership charged with cheating buyers. “The lawyers who brought the suit — Richard Fields, Saul Belz and Earle Schwarz — get $1.3 million in legal fees.” Some customers have expressed indignation that in order to get any of their money back they have to patronize the dealership again. “The outcome also may provide fodder for federal lawmakers, including Rep. Ed Bryant (R-Tenn.), who are attempting to push reforms of the class-action system. … ‘Justice is there for the victim and the defendant and not just for the lawyers to make money,’ Bryant said Thursday.” (Louis Graham, Memphis Commercial Appeal, Feb. 15).

February 18-19 — Lawyers swallow lion’s share in estate dispute. A contest over the A$154,000 estate left by a 44-year-old Australian has ended with the following resolution: the decedent’s original family is to get $22,000, his live-in male partner is to get $10,000, $10,000 will go to the cost of selling his house, and lawyers and their expenses have swallowed up the remaining $112,000. (“Battle over gay partner’s estate won by lawyers”, AAP/The Age (Melbourne), Feb. 13).

February 15-17 — Kaiser Aluminum bankrupt. North America’s third-biggest aluminum producer “filed for Chapter 11 bankruptcy protection Tuesday, blaming depressed prices and asbestos litigation”. (“Kaiser Aluminum: Prices, asbestos suits force Chapter 11 filing”, Chicago Tribune, Feb. 13; “The Job-Eating Asbestos Blob” (editorial), Wall Street Journal/ OpinionJournal.com, Jan. 23).

February 15-17 — “The Enron mythos”. The story of the energy company’s collapse has been propelled by the conventions of pack journalism, with the New York Times the worst offender (see Kausfiles.com, scroll to Jan. 25). Employee benefits expert Tom Veal, on his Stromata site, dispels a few of the widely circulated misconceptions — check out for example Feb. 2, on the sinister-sounding practice of “locking down” 401(k) plans. (Jan. 15-date). The Times professes to be scandalized at the discovery that many, many investment banks and accounting firms cooperate with big-company clients to structure transactions in ways that dress up their balance sheets: “Actual accounting fraud may or may not be demonstrated in the Enron case — although media and political hysteria makes finding the truth difficult. … But this much is clear: The more widespread the Enron practices are shown to be, the more likely they were NOT malevolent.” (“Robert Musil”, Man Without Qualities blog, Feb. 14 (and see other entries))(& see Mar. 6).

February 15-17 — “‘Preserving’ History at Bayonet Point”. Yes, historic preservation of old buildings is a worthy goal, but the owner of an 1874 home in Midland, Mich. isn’t convinced it should be accomplished through legal compulsion: “One of my neighbors is an 85-year-old woman who has lived in her home for 35 years. She found working with the Historic District Commission (HDC) so distressing that she decided to live with the ongoing damage caused by roof leaks rather than seek approval for correcting the problem. ‘I will let my house fall down before I deal with those people again,’ she commonly says. Score one for the history police, but not for history.” (Paul Arends, Mackinac Institute, Dec. 3).

February 15-17 — Omit a peripheral defendant, get sued for legal malpractice. Here’s a classic way the system feeds on itself, threatening to punish lawyers if they hesitate before pushing lawsuits in cases of less than clear-cut liability: “A New Jersey appeals court reinstated a legal malpractice claim Dec. 27 against a firm whose medical negligence suit against a doctor prescribing tetracycline failed to include a challenge to a 1963 manufacturer warning about the drug’s side effects. The court ruled the adequacy of the warning has never been settled as a matter of law in New Jersey, and a jury can decide whether the lawyers committed malpractice for not raising it.” (Henry Gottlieb, “Malpractice Case Reinstated Against Lawyers for Not Suing Drug Maker”, New Jersey Law Journal, Jan. 4).

February 15-17 — Welcome bloggers. Among webloggers who link to us, besides biggies InstaPundit, Mickey Kaus, Virginia Postrel, and Andrew Sullivan, are: MBaceron, Breaching the Web, Despatches from Flyover Country, Gene Hoffman, Libertarian Rant, Megan McArdle, Sean McCray, Bob Owen, and Kyle Still, among others.

February 13-14 — Didn’t know cinema seats retracted. Australia: “A teacher’s aide who was unaware cinema seats retracted has won her case against Hoyts cinemas after hurting herself at a trip to the movies. The win could force cinemas, theatres, sports stadiums and even Sydney Opera House to warn the public of the possible dangers of their seating. … While sitting down in the cinema, the child she was caring for became rowdy. [Plaintiff Diane] Burns got up to calm him down, unaware, she claims, that her seat retracted after she left it.” Burns was described as “not a regular filmgoer”. (Sarah Crichton, “Warning: movie seats can harm your health”, Sydney Morning Herald, Feb. 9).

February 13-14 — British Telecom claims to own hyperlinks. Hey, this is getting serious! “A British company claimed in federal court Monday that it owns the patent on hyperlinks — the single-click conveniences that take a Web surfer from one Internet page to another — and should get paid for their daily use by millions of people. But a federal judge with a laptop on her desk warned that it may be difficult to prove that a patent filed in 1976, more than a decade before the World Wide Web was created, somehow applies to modern computers.” (Jim Fitzgerald, “British Company Claims Patent on Hyperlinks”, AP/Law.com, Feb. 12; Michelle Delio, “Judge Dubious About Link Patent”, Wired News, Feb. 11; “Why This Link Patent Case Is Weak”, Feb. 12). Update Oct. 1-2: court dismisses case.

February 13-14 — Blue-ribbon excuse syndromes: rough divorce predisposed him to hire hitman. After Bryan Boyd McGann’s wife filed for divorce, he “ranted and raved” to a police informant for months about his desire to have her killed, then met with a supposed hitman and agreed on a $10,000 murder-for-hire contract. At trial for solicitation of capital murder, McGann attempted to introduce the expert testimony of a psychiatrist, Dr. James Grigson, to support the theory that the stress of the divorce had made him more susceptible to being entrapped by police into such a scheme. Asked whether a normal, law-abiding citizen might under some circumstances be induced to pay money to a hitman who had promised to kill his wife, Grigson testified, “Absolutely …. Even though you’re a law abiding citizen, whenever you’re into a very nasty divorce or a very contested child custody case, your strongest emotions are — are going to be stimulated.” The court disallowed the doctor’s testimony. (David J. Rubin, J.D., “Psychiatrist Claims Divorce Is Deadly”, Forensic Panel Letter, Aug. 20, 2001) (appellate opinion, Texas v. McGann, Sept. 14, 2000 (PDF format)).

February 13-14 — Defend yourself in print and we’ll sue. The Nike Corporation had no sooner published advertisements defending its overseas labor practices than it was sued by a freelance lawyer, under the state’s “private attorney general” laws, for supposed inaccuracies which violated a state law against unfair business practices and false advertising. The case is now pending before the California Supreme Court. Writes a reader: “Amazing! Take out an ad arguing your own side of a public debate and get sued by a ‘private attorney general” looking for a bounty.'” (Mike McKee, “Nike Ads Not Actionable, California Justices Hint”, The Recorder, Feb. 8).

February 11-12 — New Yorkers officially back to normal. At least in one way, they’re suing like mad: Dana Gross of Manhattan is seeking $10 million in compensatory and $10 million in punitive damages against Ticketmaster and Madison Square Garden, saying that $100 tickets to a Michael Jackson concert (she bought six) had bad locations and obstructed views. The case seeks class action status (Dareh Gregorian, “‘Tick’ed-off Jacko Fan Sues for $20M”, New York Post, Feb. 8). (Update Oct. 23, 2004: judge allows suit to move forward as class action). “A Long Island woman who sued her former church for $4 million, claiming she suffered serious injuries when a minister pushed her to the floor while trying to bless her, settled her case yesterday for $80,000. … [Her lawyer Andrew] Siben said the woman was unavailable to discuss her case because the Almighty told her not to comment. … ‘If God told her not to speak, she’s not going to violate that'”. (Kieran Crowley, “80G from L.I. church heals pain in the apse”, New York Post, Feb. 5). And: “From rescue workers who say they have lung problems to business owners who say their shops were damaged, 1,300 people have given notice they may sue New York City for a total of $7.18 billion over the aftermath of the World Trade Center attack. … The vast majority are from firefighters who say the city gave them inadequate respiratory protection at the smoldering trade center site.” (Michael Weissenstein, “1,300 People Give Notice of Intent to Sue New York City”, AP/Law.com, Feb. 8).

February 11-12 — “Congress Looks to Change Class Action System”. Nationwide class actions, unless they are very small, belong in federal courts: “In addition to giving judges more leeway over settlements or awards, the Class Action Fairness Act 2001 would move all cases involving people in more than one state seeking $2 million or more in damages into federal court from the state courts.” (Kelley Beaucar Vlahos, “Congress Looks to Change Class Action System”, FoxNews.com, Feb. 7).

February 11-12 — Columnist-fest. All first-timers:

* “[C]opyright protection for ‘Let’s roll?’ If they get it, I’m going to register ‘Hurry up,’ ‘Pick up your socks’ and ‘Why didn’t you go before we left home?'” (Cory Farley, “Let’s roll right into court”, Reno Gazette-Journal, Feb. 9)(see Feb. 4).

* Upstate New York outdoors columnist J. Michael Kelly is unimpressed with the Consumer Product Safety Commission’s campaign against the Daisy airgun, saying that CPSC really seems to be objecting to features that are industry standards: “Gravity-feed magazines, for example, have been used in BB guns for more than 100 years.” (“BB gun recall appears suspicious”, Syracuse Post-Standard, Dec. 30)(see Dec. 21).

* The plaintiffs in New York Times v. Tasini acted like they were doing freelance writers some great favor by establishing that publications could not include their work in electronic databases such as Nexis without their explicit permission. It wasn’t such a great favor in practice: “Faced with the time-consuming and expensive chore of tracking down everybody who might have rights to the articles in their databases, publishers are just taking the articles out.” (Linda Seebach, “Writers win battle and everyone loses”, Minneapolis Star-Tribune, Feb. 2).

* Stop the presses, an Ellen Goodman column we agree with (on the stacked presidential bioethics panel headed by Leon Kass): “Cure or quest for perfection?”, Boston Globe, Jan. 24. For more on the panel, see Nick Gillespie, “Birthmarks and Bioethics”, Reason, Jan. 18; Jerome Groopman, “Science Fiction”, The New Yorker, Feb. 4; Virginia Postrel’s Dynamist.com, many entries in recent weeks; and Jonathan Rauch, “Therapeutic Cloning: Why Congress Should Butt Out”, National Journal, Dec. 15, reprinted at Reason.com.

February 11-12 — Setback for Lemelson estate. “Hundreds of companies facing infringement suits by inventor Jerome Lemelson’s estate won a victory Thursday when a federal appeals court ruled that unreasonable delay in prosecuting a patent may prevent its enforcement.” The panel of the U.S. Court of Appeals for the Federal Circuit was split 2-1. Foes of Lemelson patent claims (see May 10, 2001) complain that he filed many “submarine” patent claims which he did not pursue as inventions but which surfaced decades later in the form of royalty demands as companies opened up new technologies (Brenda Sandburg, “Lemelson Foes Win Key Patent Ruling”, The Recorder, Jan. 29).


February 27-28 — Aerobics studio mustn’t favor the svelte. “In one of the first cases under San Francisco’s ‘fat and short’ law, a 240-pound fitness enthusiast has filed a discrimination complaint with the city against a leading exercise firm that won’t let her be a company aerobics teacher.” Jazzercise Inc. thinks Jennifer Portnick, at size 16-18, “looks too heavy to be a good role model for exercise buffs,” but Portnick’s supporters say the important thing is that she is fit enough to teach the class. (Elizabeth Hernandez, “240-pound San Francisco woman rejected as aerobics teacher alleges bias”, San Francisco Chronicle/ Minneapolis Star Tribune, Feb. 26)(see Dec. 8, 2000). Update May 10-12: Portnick wins settlement.

February 27-28 — The thrill of it all: plaintiffs win 28 cent coupon. “Food Lion customers who held an MVP [store discount] card between 1995 and 1998 have a 28-cent rebate coming their way as a result of a class-action lawsuit.” Not answered in the article is the burning question: how much more than 28 cents are the lawyers going to get? (“Food Lion MVP customers to get tiny rebate”, AP/Raleigh News & Observer, Feb. 24).

February 27-28 — Ford didn’t push pedal extenders, suit says. A lawsuit at trial in Louisville, Ky., accuses Ford Motor of not promoting and publicizing pedal extenders as a safety boon for drivers of short stature. “If the company were to tout the adjusters’ benefit in helping prevent air bag injuries, it could be open to more lawsuits if a driver is hurt or killed by an air bag while using it.” Ford offers the popular extenders as a convenience feature without stressing their safety aspect. (“Lawsuit faults Ford on safety issue”, AP/Louisville Courier-Journal, Feb. 19; AP/Auto.com, Feb. 18)(& letter to the editor, Apr. 11)

February 27-28 — Milberg faces second probe. “Already the subject of a grand jury investigation in Los Angeles, New York-based Milberg Weiss Bershad Hynes & Lerach is also facing scrutiny over its relationship with a high-ranking political figure in Philadelphia. Both state and federal authorities are looking into whether Philadelphia City Controller Jonathan Saidel received consulting fees from two law firms — one of which is Milberg Weiss — in exchange for helping the firms win city contracts.” (Jason Hoppin, “Milberg Weiss Faces Questions on Second Front”, The Recorder, Feb. 26).

February 27-28 — Jail for schoolyard taunts? In Hastings, Minn., prosecutor James Backstrom has announced “one of the toughest juvenile-justice policies in the nation: School bullies will go to jail.” Subject to the policy are not only kids who violently lay hands on classmates but also those who “intimidate, harass, pick a fight on the playground or the bus … Mr. Backstrom wants those who are at least 13 years old to hear a cell door click behind them. … The jail-for-bullies policy has been in effect since last spring here in Dakota County.” Local prosecutors complain, however, that some judges are undercutting the policy’s intent by taking into account such mitigating factors as whether a youngster’s misbehavior was provoked. (“New plan to put bullies behind bars”, Los Angeles Times/Christian Science Monitor, Feb. 26).

February 27-28 — Welcome Sunday Times (London) readers. We’re mentioned in Andrew Sullivan’s article on the journalistic impact of weblogs (“A Blogger Manifesto”, Sunday Times (London), Feb. 24, reprinted at AndrewSullivan.com).

February 25-26 — European workplace notes. “A French court has ruled that a ‘workplace accident’ claimed the life of an electrician who overdosed on vodka while drinking with colleagues in Russia. The unnamed 44-year-old Frenchman died of alcohol poisoning after a night of heavy drinking with Russian colleagues in Nalchik, southern Russia, three years ago.” (“Vodka death ruled ‘industrial accident'”, BBC, Feb. 18). In County Cavan, Ireland, a “piggery manager who claimed he had suffered deafness as a result of the noise of squealing pigs settled his action against the piggery owner.” (“And this little piggy …. missed his day in court”, Irish Independent, Feb. 19). And in Kent, England, “a dyslexic banker branded ‘Trebor’ by his boss — his Christian name spelled backwards — has been awarded damages of £95,000 by an employment tribunal.” (David Sapsted, “Sacked dyslexic awarded £95,000”, Daily Telegraph, Feb. 22).

February 25-26 — Fen-phen: gold standard indeed. The lead plaintiffs’ lawyers in the fen-phen diet drug litigation want a court to award them $567 million in fees for work negotiating a multibillion-dollar settlement, claiming their efforts set the “gold standard” for devising a mass tort “mega-settlement”. Besides, it’s peanuts when you consider that plaintiffs who opted out “have racked up more than $8 billion in settlements, leading to more than $2.8 billion in fees for their lawyers.” The brief also alleges that drug manufacturer American Home Products “paid its attorneys about $1.2 billion to $1.6 billion in fees and costs for defense of the diet drug cases.” (Shannon P. Duffy, “Fen-Phenomenal”, The Legal Intelligencer, Feb. 21).

February 25-26 — “Drunken Driver’s Widow Wins Court’s OK To Sue Carmaker”. New York’s highest court has ruled that the widow of a Westchester County man killed in a crash of his VW Jetta with more than twice the legal amount of alcohol in his system can nonetheless sue the German automaker. In a 10-page dissent, Justice Albert Rosenblatt wrote that the “majority’s rationale … invites people injured as a result of their own seriously unlawful acts to blame others and recover damages previously prohibited”. (Kenneth Lovett, New York Post, Feb. 20).

February 25-26 — “PETA Says It Will Sue New Jersey Over Deer/Car Accident”. Two activists with the extremist animal rights outfit were driving along the New Jersey Turnpike when a deer (lamentably heedless of their rights) darted out in front of their vehicle, and the ensuing crash caused considerable property damage. Now they have sent “a notice to the New Jersey Division of Fish and Wildlife declaring their intent to sue the state of New Jersey for contributing to the accident through their deer management practices,” the theory being that the state is too willing to cater to the hunters who reduce the deer herd — no, it doesn’t make any sense to us either. (AnimalRights.net (Brian Carnell), Feb. 18)(& see Nov. 29, 2001).

February 22-24 —USA Today on slavery reparations. The story comes close to acknowledging that the legal basis for the impending lawsuits is so shoddy that their only real settlement value comes from the hope of inflicting bad publicity on companies and other defendants willing to pay to make it stop. So what does Gannett/USA Today, itself a likely defendant, do? It awards the lawyers another ton of publicity against named companies. Makes sense, right? Note that Willie Gary now claims the lawyers’ “work is likely to be done pro bono“, which is a very different story from what he said not too long ago (see Dec. 22, 2000) (James Cox, “Activists challenge corporations that they say are tied to slavery; Team of legal and academic stars pushes for apologies and reparations”, USA Today, Feb. 21). (DURABLE LINK)

February 22-24 — Role of the oath. We must take issue with Andrew Sullivan (“The Dish”, Feb. 21), who thinks it’s okay for President Bush to sign a substantially unconstitutional campaign finance bill on the expectation that the Supreme Court will throw out the unconstitutional parts. (Members of Congress sometimes cite a similar theory to explain why they vote for bills they are not sure are constitutional.) But as such commentators as Justice Scalia have pointed out, members of each of the three branches of government, not just the high court, take oaths pledging to uphold the Constitution. Among the functional purposes of the oath is to impress on them that the task of upholding the document is not just someone else’s, but theirs as well. To adopt what you might call the sole-goalie theory of constitutionality — which lets you kick the ball toward the goal of a Constitutional violation, relying on the Court to block — is to leave the document at best in the vulnerable state of being defended once when it deserves three-deep defense. (DURABLE LINK)

February 22-24 — “Student Grading by Peers Passes High Court Test”. The Supreme Court, interpreting federal law, unanimously decides it’s not illegal for teachers to let students rate each other’s work (see Nov. 28, 2001) (Charles Lane, Washington Post, Feb. 20).

February 22-24 — Culture war over BB guns. As suburban culture clashes with rural in Alpharetta, Ga., outside Atlanta, “a new ordinance here makes it a crime to let children under 16 use a BB gun — or its modern cousin, the paintball gun — without parental supervision.” Quotes our editor, although the sentiments attributed to us came out slightly more colorful than what we actually recall saying (Patrik Jonsson, “Town’s curb on BB guns becomes a clash of values”, Christian Science Monitor, Feb. 22).

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December 2001 archives


December 10 — “Halliburton Shares Plunge on Verdict”. The market clipped $3.8 billion off the giant oil field service company’s share valuation after Peter Angelos got a $30 million jury award against it. “The ruling is the fourth significant asbestos ruling against Halliburton since late October, according to Merrill Lynch … Over the last 25 years, Halliburton has settled 194,000 asbestos claims, the company said. The average payment was about $200, according to Allen Brooks, executive director at CIBC World Markets. As of Sept. 30, the company faced 146,000 open asbestos claims and 182,000 more from a former subsidiary called Harbison-Walker.” (David Koenig, AP/Yahoo, Dec. 7; Neela Banerjee, “Halliburton Battered as Asbestos Verdict Stirs Deep Anxieties”, New York Times, Dec. 8). Federal-Mogul, the big auto parts maker, became the latest large bankruptcy to result from asbestos litigation with a filing two months ago (Joe Miller, “Asbestos suits hurt Fed-Mogul”, Detroit News, Oct. 2).

“In late October, a Mississippi jury ordered three firms, including oil-services giant Halliburton and manufacturer 3M, to pay six plaintiffs $25 million apiece. …What made jaws drop was that the plaintiffs weren’t even sick–their X-rays just showed they stood an increased chance of getting sick. ‘Most of these guys have not missed a day of work in their lives,’ their lawyer said. … To unearth new clients for lawyers, screening firms advertise in towns with many aging industrial workers or park X-ray vans near union halls. To get a free X-ray, workers must often sign forms giving law firms 40 percent of any recovery. One solicitation reads: ‘Find out if YOU have MILLION DOLLAR LUNGS!'” (“Looking for some million-dollar lungs”, U.S. News, Dec. 17).

Some say asbestos defendants should try to avoid angering juries by paying claims without a fight, but an attorney for power plant maker Babcock & Wilcox said an uncritical approach to claims had proved too expensive for his now-bankrupt client: “In the past, you literally filled out a form in five minutes that stated the claimant had a note from the doctor saying he was coughing and had other symptoms and showed that he worked at the site. It took five to 10 minutes to fill out the form that would routinely lead to checks for thousands of dollars.” (Terry Brennan, “Firms Wary of Challenging Asbestos Claims”, The Deal, Nov. 13). And battling continues in a case (see Feb. 12-13) in which B&W and other asbestos defendants have attempted to turn the tables on leading plaintiff’s firms, arguing that they have violated racketeering laws by coaching clients’ testimony and by threatening retaliation against companies that seek a legislative solution to the litigation morass. (Mark Hamblett, “Asbestos Companies Bring RICO Suit Against Plaintiffs’ Firms”, New York Law Journal, Sept. 6). This spring defendant law firms won a court order prohibiting the plaintiff companies from questioning their former, as well as their current, employees without counsel being present — i.e., even if the former employees are eager to spill the beans they will not be allowed to do so except in the presence of someone representing their former employer. That certainly should put a chill on whistleblowing (Mark Hamblett, “Employees of Law Firms Charged With Racketeering Shielded From Interviews Without Counsel”, New York Law Journal, April 11).

Plus: Dallas alt-weekly Observer, which had run some of the best journalism on the Baron & Budd client-coaching asbestos scandal, returned with a terrific follow-up in March which we’ve unconscionably delayed in linking (Thomas Korosec, “Homefryin’ with Fred Baron”, Dallas Observer, March 29). (DURABLE LINK)

December 10 — Steve Chapman on military tribunals. “President Bush has provoked a storm of criticism by authorizing special military tribunals to try terrorists caught in our war against al Qaeda. Some of the complaints, dealing with the specific rules and procedures that the administration proposes, are worth considering. But other gripes seem to miss the crucial point that war is vastly different from law enforcement. ” (Chicago Tribune/ TownHall, Dec. 6).

December 10 — Love contracts. Some lawyers continue to advise employers to get co-workers who are in amorous relationships to sign legal documents affirming that the liaison is indeed voluntary, and that they will not harass each other if it ends. A 1998 survey by the Society for Human Resource Management “found that while 88 percent of the companies that discourage workplace romances do so out of fear of sexual harassment claims, just 4 percent of such relationships resulted in claims that led to litigation.” We don’t know where that “just” comes from — a 4 percent risk of getting the employer dragged into court sounds pretty serious to us. (Torri Minton, “Caught in the pact — Couples involved in office dalliances required to sign ‘love contract'”, San Francisco Chronicle, Dec. 2). (DURABLE LINK)

December 10 — “Saudi Arabia finally gets tough on terrorism!” “We are fighting a holy war to eradicate the source of the biggest corruption on earth,” says Saudi lawyer Ahmad al-Tuwarjiri, but it turns out he’s talking about … tobacco companies, who he’s suing in a legal action in Riyadh. (Frank Gardner, “Saudi hospital fights tobacco ‘terrorists'”, BBC, Dec. 4, via Untold Millions weblog, Dec. 5) (see Nov. 16, 2000 — we’re not sure what became of that earlier action, but suspect that it didn’t fare well, since the action’s now moving to Riyadh). (DURABLE LINK)

December 7-9 — Counterterrorism agents, on their own. Gabriel Schoenfeld, writing in Commentary: “Last year, at the behest of Congress, the National Commission on Terrorism, a body of leading experts, issued findings” on U.S. vulnerability to terrorist attack. Among other problems it warned of: the nation lacks adequate counterterrorist efforts, including intelligence monitoring of terrorist groups. “According to the commission, the guidelines governing the recruitment of ‘unsavory’ sources, introduced by the Clinton administration in 1995, had created a climate within the CIA that was ‘overly risk-averse’ and that contributed ‘to a marked decline in agency morale unparalleled since the 1970s.’ That is bad enough; but the morale problem had sources beyond the restrictive guidelines. Again according to the commission, some CIA officers and FBI special agents were being ‘sued individually’ by terrorist suspects for actions taken in the course of their officially sanctioned duties. Instead of representing them in such suits, the government was letting the agents fend for themselves; those who chose to stay on the job were being forced to purchase personal-liability insurance to cover their legal bills.

“Did the commission call for an end to this preposterous state of affairs, whereby accused terrorists have been able to turn the tables on their pursuers and bring them to court? Not at all. It asked only that the government provide ‘full reimbursement of the costs of personal-liability insurance.'” (“Could September 11 Have Been Averted?”, Commentary, December (scroll to near end)).

December 7-9 — Overlawyered schools roundup. A judge has thrown out Desiree Radford’s suit claiming that it was unlawful for the city of Buffalo to lay off teachers in her son’s district without first conducting an environmental impact statement (“Judge Dismisses Mother’s Case To Stop Buffalo Teacher Layoffs”, WGRZ.com, undated). In Ohio, the case of Fairview High School junior Aaron Petitt, “who claimed he was denied freedom of speech and due process when he received a 10-day suspension for hanging posters of airplanes bombing Afghanistan on his student locker,” is ending with a denouement summed up in the Cleveland paper’s headline: “District settles case with student; he gets $2,000, lawyers $21,000”. Aaron’s lawyers are charging local taxpayers $300 an hour for their services. (Sarah Treffinger, Cleveland Plain Dealer, Dec. 1). Schools in Canada’s largest city will probably wind up in court because of an effort to raise standards: “A Toronto parent group concerned about Ontario’s tough new school curriculum will encourage parents to take legal action against the government if their children are suffering under the revamped standards.” (Lee-Anne Goodman, “Toronto parent group encourages legal action”, Canadian Press/Toronto Sun, Dec. 2). And attorney Susanna Dokupil comments on the don’t- read- grades- aloud- in- class case currently before the U.S. Supreme Court. (“Hey, Congress, Leave Us Kids Alone”, The American Enterprise, Nov. 29) (see Nov. 28). (DURABLE LINK)

December 7-9 — “Hell’s litigious angels”. John Leo’s annual who’s-a-victim roundup leads off with the touchy motorcyclists who want protected-group status in discrimination law: “America’s next official victim group may be roaring your way on their Harley-Davidsons.” (U.S. News, Dec. 10; Chris Weinkopf, “Born To Be Mild”, FrontPage, Nov. 28; see Nov. 19-20). The Boston Globe‘s Jeff Jacoby thinks this would be a good time to take a stand on behalf of the principle of freedom of association: “Bikers Demand Their ‘Civil Rights'”, Nov. 29, via Center-Right).

December 7-9 — Chrysler dodges a $250 million dart. Blessed with a favorable appellate circuit (the Fourth) and high-powered counsel (Ted Olson, now solicitor general, and Theodore Boutrous of Gibson, Dunn & Crutcher), DaimlerChrysler has managed to get a $250 million South Carolina punitive award overturned. “The court also reversed and remanded for retrial the jury’s finding of liability and its award of [$12.5 million] compensatory damages, finding that Chrysler should have been able to introduce evidence that a child who was ejected from a Chrysler minivan was not wearing a seat belt.” (“Chrysler Escapes $250 Million in Punitives”, National Law Journal, Nov. 1). San Francisco Chronicle legal columnist Reynolds Holding says the disparate fate of punitive damages on appeal in different cases — $5 billion against ExxonMobil held excessive in the Valdez spill case, $25 million upheld against Philip Morris in a case brought by an individual smoker– suggests that critics of punitive awards may have a point about their arbitrariness: would anyone have been especially surprised had the outcome been reversed and the tobacco maker rather than Exxon had gotten its award reduced? (“Scales of justice out of whack”, Nov. 25). And if you still thought plaintiffs in our legal system bore the burden of proving their legal case, get with it: “The New Jersey state judiciary has issued model civil jury charges that implement a new standard of proof in automobile crashworthiness cases, making it clear that automakers now have the burden of proving their vehicles provide occupants adequate protection.” (Charles Toutant, “New Jersey Shifts Burden of Proof in Auto Design Cases”, New Jersey Law Journal, Sept. 11).

December 5-6 — Cosseted to distraction. New Jersey has made itself “the darling of child-safety advocates” by becoming the first state to adopt a National Highway Traffic Safety Administration recommendation that children in cars be required to ride in booster seats until they weigh 80 pounds or reach their eighth birthday. But even some conscientious parents say the new law goes too far: older kids rebel at being forced back into “baby” seating, carpools break up as adult co-workers shun the nannyized vehicles, besides which the devices cost good money. (Kaitlin Gurney, “Tough N.J. safety-seat law poses dilemmas”, Philadelphia Inquirer, Nov. 30). And the Washington Times reports a presumably unintended consequence of those red-light cameras that revenue-hungry municipalities have installed to generate citations: “Some D.C. police officers say they are slowing their response to emergencies because photo-radar cameras are ticketing them for speeding … They said they and other officers have been forced to pay the fines, and are now on edge about speeding to a crime scene and running red lights in emergencies.” (Brian DeBose, “Cops get speeding tickets from cameras”, Nov. 29).

December 5-6 — “Victims of Day-Trader Rampage Say Industry Itself to Blame”. Two years ago financially ruined day trader Mark Barton walked into two office buildings in the Buckhead section of Atlanta and massacred nine persons. Now lawyers, “arguing that Georgia tort law should evolve with the times,” are hoping to put the day-trading segment of the securities industry on trial, saying that the volatile and risky nature of its business made such a crime foreseeable. (Trisha Renaud, Fulton County Daily Report, Nov. 30). Update Jan. 9-10, 2002: judge dismisses suit against building owners and managers, but lets it go forward against two day-trading firms. (see further updateDec. 19, 2003)

December 5-6 — “EU considers plans to outlaw racism”. Free speech for me, but not for thee: “Racism and xenophobia would become serious crimes in Britain for the first time, carrying a prison sentence of two years or more, under new proposals put forward by Brussels … [the ban includes] a wide range of activities that sometimes fall into the sphere of protected political speech, such as ‘public insults’ of minority groups, ‘public condoning of war crimes’, and ‘public dissemination of tracts, pictures, or other material containing expressions of racism of xenophobia’ — including material posted on far-Right internet websites.” The “plans, drafted by the European Commission, define racism and xenophobia as aversion to individuals based on ‘race, colour, descent, religion or belief, national or ethnic origin'”. (Ambrose Evans-Pritchard, Daily Telegraph, Nov. 29). In The American Prospect, Wendy Kaminer discusses the suit filed in August against America Online for allegedly allowing participants in its chat rooms to engage in “hate speech” against Muslims: “Virtual Offensiveness”, Nov. 19 (see Sept. 3).

December 5-6 — Attorney can sue for being called “fixer”. A federal judge has ruled that Pennsylvania attorney Richard Sprague can proceed with his defamation lawsuit against the American Bar Association and its magazine, the ABA Journal, which had called him a “fixer”. Although writers often employ that term to describe the sort of political wheeler-dealer who uses connections in a perfectly lawful way to resolve people’s problems, the judge found the term might also evoke an impression that Sprague improperly “fixed” cases. (Shannon P. Duffy, “Lawyer’s Defamation Claim Against ABA Found Valid”, The Legal Intelligencer, Nov. 19). Update Nov. 30, 2003: case settles for undisclosed sum and half-page apology.

December 5-6 — Resources: terrorism and the law. Some useful jumping-off points for research and reading: Jurist; FindLaw; Federalist Society briefing papers; Brookings; New Yorker.

December 4 — There’ll always be a California. It’s a state of mind, really:

* In a notice letter sent to Nestlé, Tootsie Roll Industries Inc., Godiva and numerous other confectioners including local favorites Ghirardelli and See’s, attorney Roger Carrick of Los Angeles’s Carrick Law Group has charged the companies with violating the state’s Proposition 65 right-to-know law by failing to post warning labels on chocolate advising consumers that it contains toxic substances such as lead and cadmium. Michele Corash, a Morrison & Foerster lawyer defending Hershey and Mars in the controversy, says the Food and Drug Administration has called chocolate harmless: “What Mr. Carrick is complaining about is tiny amounts of trace minerals that are present in virtually all foods. They are in the soil, and foods that are grown in soil absorb them.” Carrick says it hasn’t been proven that all the lead and cadmium content are from natural sources, but even trial- lawyer- friendly California AG Bill Lockyer has weighed in on the side of the candy makers. (John Rosmer, “Chocolate: It’s Fattening, but Is It Toxic?”, San Francisco Daily Journal, Oct. 29, not online; Dan Evans, “Death by chocolate?”, San Francisco Examiner, Nov. 26). And Forbes explains how Prop 65 has made it possible for bounty-hunting lawyers to do very well: “Visit any doctor or dentist in California. If you don’t see signs warning you that the physician is using potentially harmful chemicals as defined by the state’s Proposition 65 (e.g., mercury fillings), haul him into court and demand $2,500 for each day he didn’t post the warnings. You get 25% of the loot, the state 75%”. (Dorothy Pomerantz, “Toxic Avengers”, Forbes, Oct. 15).

* You may have thought your home belonged to you, but some disabled-rights activists have other plans for it: “In what would be the first such rules in the nation, Santa Monica officials are considering a proposal to require that all privately built new homes and those undergoing major remodeling have a wheelchair ramp entry, wide interior hallways and at least one handicapped-accessible bathroom.” (Bob Pool, “Wheelchair Access as a Must for Residences”, L.A. Times, Dec. 2).

* “Richard Espinosa, whose assistance dog allegedly was attacked by the [Escondido] Public Library’s pet cat last year, filed a lawsuit against the city yesterday seeking $1.5 million in damages.” (see May 7 and (letter from Espinosa) June 13) (& see Apr. 15, 2002) (John Behrman, “$1.5 Million Suit Filed in Library Cat Case”, San Diego Union Tribune, Nov. 28).

December 4 — An ill wind. Among those prospering in the wake of the Sept. 11 attacks: employment lawyers, whose phones may ring nonstop in a time of mass layoffs. (“Layoff Lessons”, Corporate Counsel, Nov. 21). Garry Mathiason of the management-side firm Littler Mendelson says that in addition to that, his firm “has three key advantages: sex, drugs and violence” — all sources of legal risk for employers. (Krysten Crawford, “Littler’s Labors”, The Recorder, Nov. 20).

December 4 — Headline of the day. “Sept. 11 Laws Raise Fears of Tort Reform” — Bob Van Voris, National Law Journal, Nov. 27. Love that “fears”. The NLJ does know its audience, doesn’t it?

December 3 — Can’t do anything but legislate. Some constituents are furious at Pennsylvania state representative Jane Baker, a Republican, after learning that her lawyers have filed papers in a car-accident case portraying her as “virtually unemployable” aside from her lawmaking job. “In a televised debate last fall, Baker assured viewers that, both physically and mentally, she was up to the task of representing them in Harrisburg. Asked directly if she could read and comprehend well, she replied, ‘I’m fine.’ She went on to say that a physical injury to her left arm ‘appears to be permanent, but otherwise … I’m ready to go to work’ in Harrisburg.

“Legal papers Baker filed last month paint a dramatically different portrait. If not re-elected, Baker claimed Oct. 19 in legal papers tied to her case, she will be ‘virtually unemployable’ because of her condition, which includes physical and ‘multiple cognitive defects’ that include problems remembering and recollecting what she has read.'” Baker’s suit is demanding $7.5 million in damages from Judith V. Fulmer, “a former friend who pleaded guilty to drunken driving and leaving the scene of an accident” after police say her vehicle struck Baker as she walked along a country road. (Mario Cattabiani, “Baker’s lawsuit puzzles some”, Allentown Morning Call, Nov. 4).

December 3 — “Terrorists push plots from jail”. It’s practically a tradition for American inmates to continue running criminal enterprises from their cells, but the stakes have gotten higher: investigators now realize that Mideast terrorists locked up in American prisons have repeatedly managed to communicate with outside followers to approve and even help plan further murderous attacks. The Bush administration on Oct. 31 announced a new practice of listening in on conversations between detainees and their attorneys when it determines there is “reasonable suspicion” that such communications are related to future terrorist acts; Attorney General John Ashcroft says that there are only 13 persons in custody — at the moment — for whom it would like to use such power. The detainees and their attorneys are to be advised of the monitoring, and a “privilege team” is supposed to screen the resulting information so that it does not reach the eyes of prosecutors or regular investigators. American Bar Association president Robert A. Hirshon says such monitoring is constitutional only if a judge approves it in advance under a probable-cause standard, and Senate Judiciary chair Patrick Leahy (D-Vt.) also views the new practice as “unacceptable” in its current form. (Cam Simpson, Chicago Tribune, Nov. 19; Pete Yost, “Ashcroft Defends Monitoring of Inmate-Attorney Conversations”, AP/Law.com, Nov. 13; Tom Gede, Kent Scheidegger and William Otis, “Monitoring Attorney-Client Communications of Designated Federal Prisoners”, Federalist Society National Security White Papers, Dec. 3).

December 3 — Lending rules trip up litigation-finance firms. Class-action lawyers have repeatedly tripped up financial services firms by arguing in court that transactions characterized as cash advances (such as “rapid refunds” that tax-preparing companies issue before the actual IRS check arrives) are in reality loans, leaving companies liable if they have not made the full range of disclosures required by truth-in-lending law (see, for example, Apr. 5). So some might see a kind of poetic justice in the news from Ohio, where an appellate court has “ruled that two companies that advance money to personal injury plaintiffs on the understanding that they will be repaid only if the plaintiffs prevail, are making loans — not ‘contingent advances’ — and violated state usury and lender- registration laws.” Every so often, surprising as it may seem, the litigation community does wind up having to live by the same rules it prescribes for the rest of us. (Gary Young, “Ohio Court Rules Against Litigation-Loan Firm in Usury Case”, National Law Journal, Nov. 16) (see also letter to the editor, Oct. 22).


December 20 — New York guardianship scandals. “Cronyism, politics, and nepotism” run rife in New York’s notorious system of court-appointed guardianships, a report released by the state’s chief judge, Judith Kaye, has found after a two-year investigation (see Jan. 12, 2000). “In one case, a lawyer appointed to be a guardian for a woman who could not handle her own affairs billed her estate $850 after he and an assistant took a cake and flowers to her nursing home on her birthday. On another day, the lawyer and an employee took her out for a walk and bought her an ice cream cone. Their bill was $1,275.” And much, much more (Jane Fritsch, “Guardianship Abuses Noted, Including a $1,275 Ice Cream”, New York Times, Dec. 4; Daniel Wise, “Investigation Finds ‘Cronyism’ Abounds in New York Court Appointments”, New York Law Journal, Dec. 5; “Report of the Commission on Fiduciary Appointments”, December; “Fiduciary Appointments in New York“).

December 20 — “Firms Hit Hard as Asbestos Claims Rise”. L.A. Times looks at asbestos litigation and finds abuses and overreaching have gone so far that even some prominent plaintiff’s lawyers agree on the need for action. “An Oakland-based attorney who has represented asbestos victims for 27 years is leading a renegade faction of the plaintiffs’ bar that has joined with many of the corporations they sue in calling for limits on claims from people without serious illnesses. ‘It’s too far gone to do anything else,’ Steve Kazan said. ‘The asbestos companies are really cash cows that we should care for and cultivate so we can milk them for years as we need to. But I have colleagues who’d rather kill them, cut them up and put them on the grill now. We’d all have a great time, but there are people who will be hungry in five years.'” Over 15 years, now-bankrupt boilermaker Babcock & Wilcox “spent $1.6 billion on 317,000 claims that took paralegals five to 10 minutes each to prepare.” (Lisa Girion, “Firms Hit Hard as Asbestos Claims Rise”, L.A. Times, Dec. 17). According to a letter sent by the Manville Trust to federal judge Jack Weinstein on Dec. 2, asbestos claimants with cancer or other grave illness are receiving reduced payments because “disproportionate amount of Trust settlement dollars have gone to the least injured claimants — many with no discernible asbestos-related physical impairment whatsoever.” As usual, a key problem is the submission of questionable x-rays. (Queena Sook Kim, “Asbestos Trust Says Assets Are Reduced As the Medically Unimpaired File Claims”, Wall Street Journal, Dec. 14)(online subscribers only).

December 20 — Accused WTC bombing participant won’t get $110K. “In a decision that comments extensively on the war on terrorism, the 3rd U.S. Circuit Court of Appeals overturned an award of more than $110,000 in attorney fees to a Palestinian man who successfully avoided deportation after the government accused him of involvement in the 1993 bombing of the World Trade Center … the court found that the government’s efforts to deport Hany Mahmoud Kiareldeen were ‘substantially justified’ even though it was ultimately unable to prove its case against him to the satisfaction of the trial judge” by clear, convincing and unequivocal evidence. (Shannon P. Duffy, “3rd Circuit Takes Away Attorney Fee Award in ’93 WTC Bombing Case”, The Legal Intelligencer, Dec. 7).

December 19 — Texas jury clears drugmaker in first Rezulin case. Back to the drawing board for plaintiff’s lawyers trying to take down the Warner-Lambert division of Pfizer over side effects from its diabetes drug Rezulin. “‘It was a good drug. It helped a lot of people,’ said one juror, who asked not to be identified. ‘There just wasn’t enough evidence to show the drug was defective.'” Attorney George Fleming had demanded $25 million in damages and “emphasized Warner-Lambert’s interest in profits, flashing excerpts from internal memos before the jury.” Lawyers have many more Rezulin cases in the pipeline, so they’ll be able to try again and again before other juries. (Leigh Hopper, “Firm wins 1st Rezulin suit in court”, Houston Chronicle, Dec. 17). UpdateJan. 9-10, 2002: second trial goes against drugmaker with $43 million actual damages.

December 19 — “$3 million awarded in harassment”. “A federal jury Wednesday awarded a woman patrol officer for the Cook County Forest Preserve District $3 million in damages — $1 million more than her lawyer sought from the district–for years of sexual harassment and retaliation on the job … One member of the five-woman, three-man jury said he didn’t find the harassment egregious but felt a need to send the Forest Preserve District a message for its inaction regarding Spina’s complaints. ‘The county didn’t respond,’ juror Christopher Calgaro, an insurance claims supervisor from Homewood, said after the verdict. ‘They need to change, I mean catch up to the times.'” (Matt O’Connor and Robert Becker, Chicago Tribune, Dec. 13).

December 19 — Sued if you do dept.: language in the workplace. “Any worker offended by the words of a single employee can sue his employer for damages. Accordingly, many employers have adopted ‘English-only’ rules for their employees, in order to better supervise employee comments. Yet the EEOC also insists that employers can be sued by any employee who takes offense to an ‘English-only’ policy.” (Jim Boulet Jr., , “Catch-22 on Language”, National Review Online, Nov. 14) (see Nov. 17, 1999).

December 18 — False trail of missing lynx. “Federal and state wildlife biologists planted false evidence of a rare cat species in two national forests, officials told The Washington Times. Had the deception not been discovered, the government likely would have banned many forms of recreation and use of natural resources in the Gifford Pinchot National Forest and Wenatchee National Forest in Washington state.” After a Forest Service employee blew the whistle on colleagues, officials discovered that seven government employees, five from federal agencies and two from Washington state, “planted three separate samples of Canadian lynx hair on rubbing posts used to identify existence of the creatures in the two national forests.” The employees were given no serious discipline, merely counseling and being taken off the lynx survey project, and federal officials would not even release their names, “citing privacy concerns.” (Audrey Hudson, “Rare lynx hairs found in forests exposed as hoax”, Washington Times, Dec. 17; InstaPundit, Dec. 17).

December 18 — For client-chasers, daytime TV gets results. “Princeton, N.J. lawyer John Sakson … spends up to $80,000 a month soliciting potential plaintiffs. Some of his advertising is aimed at slip-and-fall and medical-malpractice victims. But these days he’s also trawling for much bigger fish — plaintiffs for deep-pocket attacks on big corporations, especially pharmaceutical companies. … the nation’s largest legal- advertising agency … says one-third of its $20 million in legal billings comes from pharmaceutical litigation ads, compared with maybe 1% a decade ago.” Poor, unemployed and disabled people disproportionately watch daytime TV: “Real-life judge shows like Judge Mills Lane and Judge Judy are jackpots.” (Michael Freedman, “New Techniques in Ambulance Chasing”, Forbes, Nov. 11).

December 18 — Compulsory chapel for Minn. lawyers. “Since 1996, the Minnesota Supreme Court has required attorneys to participate in its version of diversity training — called ‘elimination of bias’ education — as a condition of holding a license to practice law.” The point is less to regulate attorneys’ conduct than to instill in them opinions that the authorities consider correct about complex political and moral questions, and many of the resulting seminars have had a tendentious, preachy anti- white- male tone. (Katherine Kersten, “Court-ordered ‘elimination of bias’ seminars threaten freedom of thought”, Minneapolis Star-Tribune, Dec. 12). See update Nov. 21, 2003 (lawyer challenges requirement).

December 17 — “Suing the City for Sept. 11? Oh, Why Not?”. Giuliani or Bloomberg, New York City’s tort crisis just keeps getting worse: “Settlements cost the city $459 million that year [fiscal 2000], the latest for which statistics are available. … You might expect the litigation to slow down as a hurt and financially damaged city looks to rebuild and weather a recession. You would be wrong. … Interviews with lawyers for the city and prospective plaintiffs indicate that the attack will generate substantially more than 1,000 notices of claim.” (Joyce Purnick, New York Times, Dec. 13).

December 17 — Slouching toward Marin? Every conservative commentator in the country, it seems, has by now told us where to pin the blame for Tali-boy John Walker’s descent into Islamic extremism: it’s all because of his permissive, religiously liberal suburban upbringing. Steve Chapman offers a corrective to all the Culture War axe-grinding (“Is John Walker a failure of liberalism?”, Chicago Tribune, Dec. 16).

December 17 — Daynard watch. It sure did take a long time, but the British Medical Journal has finally admitted to its readers that tobacco-baiting Northeastern University law prof Richard Daynard failed to disclose competing interests in litigation to BMJ readers as per the journal’s policy (see our earlier reports). The correction states that Daynard “has been involved as counsel in suing tobacco companies and has received grants for research into the use of litigation to control tobacco use”. Because this formulation is so terse and artfully worded, however, readers in the United Kingdom (where lawyers are generally not allowed to claim percentage stakes in litigation) may not realize that the competing interest Daynard concealed consisted not in routine hourly fees but a contingency stake that, per his claims, may top $100 million (“Correction: Tobacco litigation worldwide”, Oct. 6). Connecticut activist Martha Perske deserves the credit for getting the BMJ to semi-‘fess up. Meanwhile, Daynard’s division- of- the- spoils suit against former anti-tobacco colleagues Ron Motley and Richard Scruggs “is providing an inside look at the way lawyers finagled fees in the tobacco litigation — and the lengths they’ll go to protect their hoard.” (Elizabeth Preis, “A Piece of the Action”, The American Lawyer, Sept. 7).

December 15-16 — Criminal defense attorneys, doing what they do best. “While it may seem like the ultimate smoking gun, defense lawyers said there would be ways to try to undercut the videotape of Osama bin Laden if he were to go on trial for the Sept. 11 terrorist attacks. … ‘I would argue as a defense lawyer that the tape is puffery, celebration and bragging,’ said Robert E. Precht, director of public interest law at the University of Michigan Law School who was a defense lawyer in the trial of the World Trade Center bombers in 1994′ … several defense lawyers suggested that a creative defense team might claim that the damning translation from Arabic was misleading or that the tape was doctored. ‘The reality is you can make a tampering argument with any tape,’ Barry I. Slotnick, a New York defense lawyer, said.” And: “with tapes that are transcribed from a different language, there are interpreters you can find who can come up with a different transcript,” offered New York’s Benjamin Brafman. Then there’d be attacks on the tape’s admissibility, since “it was not clear how the government obtained it”, which might in turn force the CIA to reveal sensitive information — great tactical leverage. (William Glaberson, “Defense Lawyers See Ways to Attack Tape, if Not Win”, New York Times, Dec. 15). On the role of the O.J. Simpson case in convincing much of the American public that our court system cannot be trusted to deliver even rough justice in a high-profile criminal trial, see, among many others, Glenn Reynolds, InstaPundit.com, Dec. 13.

December 15-16 — Updates. Further developments in cases that were bound to develop further:

* The Canadian Transportation Agency has ruled that obesity in itself is not a disability and that airlines are not therefore obliged by law to offer extra seats to severely overweight passengers, although it suggested they consider doing so voluntarily (see June 7, Dec. 20, 2000)(“Canadian tribunal rules obesity is not a disability”, Reuters/FindLaw, Dec. 13).

* In New South Wales, Australia, an appeals court has ordered a new trial after finding that an award of almost $3 million (Aust.) was “excessively high” in the case of a man who sued over having been subjected to strapping as punishment twice at a Catholic school seventeen years ago (see Feb. 20). (Ellen Connolly, “Compensation takes a caning as $3m payment revoked”, Sydney Morning Herald, Nov. 1).

* Sitting en banc, the Ninth Circuit has held that grabbing the interest on clients’ trust accounts at law firms to finance poverty law does not entail any “taking” for which the clients need be compensated; the 7-4 decision comes over a dissent by Judge Alex Kozinski, whose earlier opinion for a three-judge panel (see Jan. 31) the court reversed. The Ninth now officially disagrees with the Fifth Circuit (so what else is new?) on this issue, and the circuit split may attract the attention of the U.S. Supreme Court. The court did not resolve the question of whether such programs violate the First Amendment. (Jason Hoppin, “IOLTA: 9th Circuit Says IOLTA Programs OK”, The Recorder, Nov. 15) (opinion in PDF format courtesy FindLaw).

* “Five shopkeepers prosecuted for weighing food in British Imperial measurements instead of the metric system demanded by European law appealed to London’s High Court Tuesday to quash their convictions.” After greengrocer Steven Thoburn of Sunderland, the original “metric martyr”, was brought up on charges for weighing bananas in pounds (see Jan. 22, April 11), authorities collared four more shopkeepers who were using the forbidden measures to weigh such items as mackerel and pumpkins. Some 200 protesters demonstrated outside the court in support of the merchants. (“Shopkeepers Battle for Right to Use British Weight” , Reuters/Yahoo, Nov. 23). Update Feb. 20, 2002: they lose High Court appeal.

December 13-14 — “Father seeks $1.5 million after son misses varsity spot”. By reader acclaim: “The father of a high school sophomore seeks $1.5 million in damages and the dismissal of the school’s basketball coach after his son did not make the varsity. Lynn Rubin sued the New Haven Unified School District on Nov. 27 because his son, Jawaan Rubin, was told to return to the junior varsity after being asked to try out for varsity.” The youngster attends James Logan High School in Union City, Calif. (AP/SFGate.com, Dec. 11; Contra Costa Times, Dec. 12).

December 13-14 — SCTLA’s homegrown Chomsky. We’re familiar with the tendency of politically active injury lawyers to espouse opinions farther to the left than those of the communities they live in. Still, we’re a bit amazed at a commentary that appeared last month on CommonDreams.org, a left-leaning website that has vehemently opposed U.S. military action before and after September 11. The commentary, in headlong Noam Chomsky/Robert Fisk rant mode, claims that “the United States is making war on children” in its efforts against the Taliban and al Qaeda, declares that the American military is delivering a “message of greed and violence” to Afghanis, and even puts scare quotes around the word “evil-doers” in referring to those responsible for Sept. 11. The screed’s author? Columbia, S.C. plaintiff’s lawyer Tom Turnipseed, a well-known figure in his state’s Democratic politics (most recently as its 1998 attorney general candidate; he’s now mulling a run for U.S. Senate) who’s often described as a leader of the state party’s progressive wing. Can this sort of thing really play with the voting public and in the jury box in a conservative, pro-military state like S.C.?

The “message of greed” that Turnipseed claims the U.S. is conveying to Afghanis, incidentally, consists of our offer of $25 million for the apprehension of Osama bin Laden. Presumably this is quite different from the message conveyed by Turnipseed’s own web site, which assures prospective clients that he has resolved numerous cases for sums in excess of $1 million. (“Broadcasting and Bombing”, CommonDreams.org, Nov. 22; Turnipseed’s law firm website and “mission“; via Matt Welch). (DURABLE LINK)

December 13-14 — Competitor can file RICO suit over hiring of illegal aliens. A really odd one from the Second Circuit: the court says a commercial cleaning service in Hartford has standing to sue a competitor for racketeering under federal law over the second firm’s alleged hiring of undocumented workers. If the decision stands, expect all sorts of new business-on-business litigation, underscoring the need to roll back RICO’s many overexpansive provisions, or repeal the law entirely. (Elizabeth Amon, “New RICO Target: Hiring Illegal Aliens”, National Law Journal, Nov. 27). Update: see Point Of Law, Jul. 12, 2004.

December 13-14 — Segway, the super-wheelchair and the FDA. The much-publicized new mobility device, known variously as “It”, “Ginger” and the “Segway”, originated as a spinoff of a quest for a truly powerful and versatile wheelchair that would allow disabled users to climb and descend stairs and curbs, traverse rough terrain and surmount other kinds of barriers. The IBot wheelchair project is still considered extremely promising, but progress on it has been less rapid than hoped: genuine safety concerns are part of the problem, but they’re magnified by various legal worries including the arduous process of getting the Food and Drug Administration to approve a new “medical device”. Meanwhile some disabled persons, frustrated at seeing years of their lives slip by without the yearned-for mobility advance, are now considering hacking the “Segway” to meet their needs. (Michelle Delio, “What About Kamen’s Other Machine?”, Wired News, Dec. 7).

As for the Segway itself: “No matter how inherently safe Segways may be, someone, somewhere is going to kill himself on one. ‘It’s inevitable,’ says Gary Bridge, Segway’s marketing chief. ‘I dread that day.’ Never mind that people die every day on bicycles, in crosswalks, on skateboards, in cars. The Segway is the newest new thing, and nothing does more to set hearts afire on the contingency-fee bar. ‘There are some very deep pockets around this thing,’ remarks Andy Grove. ‘I fear this could be a litigation lightning rod.'” (John Heilemann, “Reinventing the wheel”, Time, Dec. 2 (see p. 4)). Update: see Aug. 1, 2002.

December 13-14 — Menace of office-park geese. We knew they were sinister: an Illinois panel has approved a $17,000 settlement for Aramark Corp. deliveryman Nolan Lett, who was attacked by Canada geese on his employer’s property in suburban Oak Brook, and filed a workers’ comp claim “under the theory that Aramark had a duty to warn employees of the dangers of the geese because the building was in an area that attracted them.” Lett broke his wrist trying to fend off the pesky creatures. (“Workers’ compensation: Victim of wild goose attack settles for $17,000”, National Law Journal, Oct. 22). (DURABLE LINK)

December 12 — By reader acclaim: “Teen hit by train while asleep on tracks sues railroad”. Cameron Clapp of Grover Beach, Calif. has sued the Union Pacific railroad and its conductor and engineer, saying that they should have sounded the train’s horn or bell as well as engaged the emergency brake when they saw him asleep on the tracks. Clapp’s blood alcohol level after the accident was measured at .229, nearly three times the permissible level for operating a motor vehicle. “According to Grover Beach police, the engineer and conductor did not sound the horn because they were focused on activating the train’s emergency brakes.” Notwithstanding his client’s having been passed out at the time, Clapp’s attorney, Jim Murphy, claims that ‘These horns are enormously powerful and can literally* wake the dead.'” (Leila Knox, San Luis Obispo Tribune, Dec. 8) (*usage note)

December 12 — A bargain at $700/hour. New York law firms Weil, Gotshal and Manges and Wachtell, Lipton, Rosen & Katz “have each asked for a $1 million bonus, on top of their regular rates and costs, as an ‘enhancement'” for advising United Companies Financial Corp. of Baton Rouge, La. and its creditors during its bankruptcy. Under bankruptcy law, judges must approve the payment of fees in such cases. “Ultimately, any such fees come out of the estate of the debtor, leaving less money to go around. … Weil, Gotshal’s [attorney Harvey] Miller says that while shareholders were wiped out, his firm, which represented the debtor, still deserves a bonus for ‘creating value.’ Weil is seeking $7.3 million in fees in the case. But he says that hourly rates do not always do justice to a lawyer’s contributions. He considers his $700 hourly rate, which he increased from $675 over the summer, ‘a bargain.'”

“In another case, a small firm, Dann Pecar Newman & Kleiman of Indianapolis, has requested $5 million in fees for representing consumers in a two-year-old Chapter 11 proceeding against a defunct satellite-dish financing unit of Houston-based American General Corp. The fee request includes a $3 million bonus, which would put the 22-lawyer firm’s effective rate in the case at roughly $650 an hour — on a par with top New York firms. The consumers ultimately collected about $28 million from the company. David Kleiman, a partner, says he considers the case more akin to a far-flung class-action suit, where courts have long rewarded lawyers a multiple of their hourly rates. The fees were ‘remarkably low,’ he says.” (Richard B. Schmitt, “Bankruptcy Lawyers Seek Big ‘Enhancement’ Bonuses”, Wall Street Journal, Nov. 1 (online subscribers only)).

December 12 — Ready, aim … consult counsel. It seems that situation described by Seymour Hersh in his New Yorker story a few weeks back (see Oct. 19) — of U.S. forces hesitating to destroy a hostile target until they could consult a Pentagon lawyer — is not as unusual as might be assumed. “To many outside of military life, the idea of a judge advocate whispering in the ear of a four-star general [during mission planning and in battlefield decisionmaking] is startling. But nowadays it is standard procedure,” writes Vanessa Blum in Legal Times. “Modern judge advocates literally sit at the side of commanders, drafting rules of engagement, weighing in on targeting decisions, and even helping to prepare special operations forces for risky missions.” (“JAG Goes to War”, Nov. 15).

December 11 — “Lawyers on trial”. In what was originally planned as a cover story, U.S. News in this week’s issue asks: “Are lawyers out of control? Or, more important: Has litigation become more of a burden to society than a safeguard?”. Our editor, who provided considerable assistance (readers of this site will recognize many stories), is quoted. (Pamela Sherrid, U.S. News, Dec. 17) (links to sidebars on class action recruitment, asbestos, forum-shopping, shareholder suits). Also, an account of a recusal controversy in a New York securities-law case quotes our editor to the effect that lawyers are taking a risk when they demand that judges recuse themselves, since such demands tend to annoy not only the target judge but also his colleagues on the bench. (Heidi Moore, “IPO Recusal Motion Backfires”, The Deal, Dec. 7).

December 11 — “Wrongful life” comes to France. A court in Paris has ruled that some disabled children can sue doctors for not having aborted them, a development that OpinionJournal.com‘s “Best of the Web” takes as evidence of specifically French barbarity, apparently unaware that American lawyers have been advancing such theories for years in our courts with some success (see Aug. 22). (Nanette van der Laan, “France debates right not to be born”, Christian Science Monitor, Dec. 7; James Taranto, “Best of the Web”, Dec. 10 (last item)). Update Jan. 9-10, 2002: French doctors stage job action in protest.

December 11 —KPMG. This international services firm (no longer affiliated with the consulting firm of the same name) seems to think it has a legal right to prevent people from linking to its website without its permission, so of course any number of websites are doing just that. Like this: KPMG. Actually, our advice is to skip the company’s tedious site and just check out the Wired News account of the controversy: Farhad Manjoo, “Big Stink Over a Simple Link”, Dec. 6. (& see Blogdex)


December 28, 2001-January 1, 2002 — Eggnog expense exacerbated. Many states artificially inflate the price of holiday cheer through measures designed to further the interests of wine and spirits wholesalers, such as laws making it virtually impossible for liquor manufacturers and importers to switch from one wholesaler to another. (Americans for Tax Reform, “Monopoly Protection Laws Target Wine and Spirits Industry”, Dec. 14).

December 28, 2001-January 1, 2002 — Law firm sued over fen-phen settlement practices. “A New York law firm has come under attack by disgruntled fen-phen plaintiffs who charge the firm persuaded thousands of plaintiffs to opt out of the 1999 global class action settlement, struck a secret deal with American Home Products and then intimidated its clients to settle for far less than was promised.” The suit was filed against Napoli, Kaiser, Bern & Associates on behalf of 5,600 fen-phen plaintiffs by Seattle’s Hagens & Berman. Among its allegations are that the Napoli firm resolved cases in a large batch settlement with AHP which left it with unsupervised discretion to distribute the proceeds among various clients, and that it employed a registered nurse and attorney “to tell clients why, in her ‘expert opinion,’ the settlement represented excellent compensation for their injuries. ‘Later, a charge for “expert witness fee” appeared on client closing documents,’ the complaint states. ‘Often the so-called expert fees were dated before she even came to the NKB.'” The defendants say they obtained reasonable settlements for the clients and expect to be vindicated. (Mark Hamblett, “New York Firm Accused of Intimidating Clients in Fen-Phen Litigation”, New York Law Journal, Dec. 13).

December 28, 2001-January 1, 2002 — “The Great Mouthpiece”. Don’t get too nostalgic about the good old days: long before the O.J. trial, back in the ‘teens and 1920s, there were the likes of notorious Manhattan attorney Bill Fallon. “Few Fallon clients spent a day in jail before trial and, if not acquitted, they usually enjoyed hung juries. …Fallon’ style was Runyonesque before Runyon invented it for himself. … so long as he endured in public memory, he was the archetype of the amoral criminal defense lawyer.” (William Bryk, “Old Smoke: Criminal Lawyer”, New York Press, Nov. (vol. 14, iss. 45))

December 28, 2001-January 1, 2002 — “UK women can demand to know men’s salaries”. The new law is supposed to promote “pay equity”, but officials acknowledge there may be a wee problem protecting male employees’ privacy and preventing fishing expeditions aimed at gratifying curiosity or spite rather than fingering equal pay violations. (Jo Revill, “UK women can demand to know men’s salaries”, ThisIsLondon.com, Dec. 4).

December 24-27 — Chestnuts-roasting menace averted. Citing clean-air concerns, the Berkeley, Calif. city council “has banned log-burning fireplaces in new homes and other buildings.” An environmental activist who led the drive for the ordinance is hoping in future to extend it so as to ban homeowners’ use of existing fireplaces as well. At least seven Bay Area jurisdictions, including San Jose and Palo Alto, as well as Contra Costa and San Mateo counties, have banned installation of new residential fireplaces, but Berkeley is the first to forbid new wood-fired restaurant ovens and grills in restaurants unless pollution-control equipment is added, a possible threat to the city’s thriving foodie culture of “foraged-mesquite fires cooking free-range chickens or vegan pizzas”. Famed Berkeley restaurateur Alice Waters, who “said her grill and oven did not work properly when she tried to filter the exhaust”, is among those “totally opposed” to the new law: “We’ve had a fundamental connection between fire and food since the beginning of time.” (Peter Y. Hong, “Cozy Domestic Symbol Takes Heat in Berkeley”, L.A. Times, Dec. 23) (see Feb. 28, 2001 and Dec. 27-29, 2002). (DURABLE LINK)

December 24-27 — Holidays in strict legal form. Three seasonal rituals — the office party, gift-giving, and New Year’s resolutions — might work better if reduced to legal contract form, suggests humorist Madeleine Begun Kane. From HumorMatters.com comes another lawyered-up “Night Before Christmas” parody: “At that time, the party of the first part did observe, with some degree of wonder and/or disbelief, a miniature sleigh (hereinafter ‘the Vehicle’) being pulled and/or drawn very rapidly through the air by approximately eight (8) reindeer.” Plus, from the same site: “Politically Correct Christmas Poem” and the much-circulated “Xmas office party memos“. From IndraNet, the also much-circulated “Twelve Days of Christmas for the Politically Correct“. Chadbourne & Parke attorney Lawrence Savell puts out “The Lawyer’s Holiday Humor Album“, with tunes like “Santa v. Acme Sleigh” and “It’s Gonna Be A Billable Christmas”; all we can tell you about is the titles since we haven’t heard the album. For more Christmas lawyer humor, see Dec. 23, 1999. (DURABLE LINK)

December 24-27 — Federal judge rules high school sports schedules unlawful. More Title IX from Outer Space: a federal judge in Kalamazoo, Mich. has ruled that the Michigan High School Athletic Association has been violating federal and state civil rights law and the Fourteenth Amendment’s equal protection clause by scheduling girls’ but not boys’ athletic seasons out of sync with their collegiate counterparts. (James Prichard, “Federal Judge Rules Against Michigan High School Athletic Group in Gender-Equity Lawsuit”, AP/Law.com, Dec. 18; extensive Grand Rapids Press/MichiganLive coverage). See Dave Reardon, “Spring hoops might not be federal case”, Honolulu Star-Bulletin, Dec. 13, 2000. (& letter to the editor, Feb. 28). More: Jul. 10, 2004. (DURABLE LINK)

December 24-27 — Liability for mistargeted bombing? Sovereign immunity, shmovereign immunity, says a Jones, Day attorney who is suing to make the U.S. government (and hence U.S. taxpayers) compensate the owner of a Sudanese pharmaceutical plant destroyed by an American bombing raid in August 1998 that many subsequent reports have suggested was mistargeted. While nothing would prevent the U.S. Congress from appropriating such compensation as a voluntary matter, Justice Department lawyers are unimpressed with attorney Stephen Brogan’s argument that the plant owner is entitled as a matter of law to compensation under the Constitution’s “takings” clause, saying that clause would not cover non-U.S. property owned by a non-U.S. citizen. Not to mention the wider policy issues: “There is something to be said for the government acting with fearlessness in these circumstances,” as George Washington University law professor Jonathan Siegel says. “The president should not have to worry about tort liability” when making tough military calls. (Otis Bilodeau, “When Bombs Miss the Mark”, Legal Times, Nov. 28). (DURABLE LINK)

December 21-23 — Under the Christmas tree. Toy soldiers? Think again if you’re in the child care business: “A daycare center in North Carolina seeking state certification for its preschool program found itself penalized because an inspector discovered green plastic army men on the premises, reports the Wilmington Morning Star. Laura Johnson said the presence of the nine little army guys at her Kids Gym Schoolhouse led to the loss of five points under the state-sanctioned Early Childhood Environmental Rating System. Evaluator Katie Haselden said schools may not have such displays of stereotyping or violence on the premises. The army men ‘reflect stereotyping and violence, therefore credit cannot be given,’ she wrote in her report.” (Scott Norvell, “Tongue Tied”, FoxNews.com, Nov. 26). At home, however, this may be the year that even good liberal parents break down and buy their son a G.I. Joe, if anecdotes from New York are any indication (John Tierney, “G.I. Stands Tall Again (12 Inches)”, New York Times, Dec. 11; and don’t miss Lisa Snell, “What the Schools Teach Children About Terrorism”, Dynamist.com (Virginia Postrel), Sept. 15 (scroll down if necessary to “Power Rangers vs. Eggshells”)). However, trial lawyers and their friends at the Consumer Product Safety Commission have been running a big campaign against that classic Christmas present of a rural boyhood, the Daisy BB gun(Andrew Ferguson, “When the Nanny State Becomes the Mommy State”, Bloomberg.com, Nov. 6; “You’ll Shoot Your Eye Out!” (editorial), Wall Street Journal, Nov. 30).

December 21-23 — Fleeing obstetrics, again. One of the many prices the state of Mississippi is paying for its reputation as a trial lawyer paradise: physicians are increasingly dropping obstetrics from their practices, faced with insurance rates of $40,000-$100,000 a year that would until recently have been more typical of big cities (“Costs Lead Rural Doctors to Drop Obstetrics”, AP/Washington Post, Nov. 23). Similar problems are arising in West Virginia: Rita Rubin, “You might feel a bit of a pinch, USA Today, Dec. 3. Frederick (Md.) Memorial Hospital is among institutions that have moved to a policy of not allowing families to bring cameras to the delivery room, and some upset moms “accuse hospital officials of trying to protect themselves against malpractice suits at the parents’ expense”. (Raymond McCaffrey, “Moms Say Hospital Photo Ban Makes Birth a Blurry Memory,” Washington Post, Dec. 11; see Oct. 18, 2000). And although trial lawyers keep insisting that medical liability coverage is a high-profit line for insurers, one of the largest providers of malpractice insurance, St. Paul Cos., just announced it was finally giving up and pulling out of the business, which would seem a reasonably sincere testimony to its frustration (“St Paul Cos To Exit Medical Malpractice Business”, Wall Street Journal, Dec. 12)(online subscribers only).

December 21-23 — Australia: anti-American tripped up by speech code. In a case currently on appeal, Australia’s Financial Times was found guilty of inciting racial hatred after one of its opinion columnists wrote that Palestinians as a factor in Mideast politics were “vicious thugs” and “cannot be trusted” (see July 11, 2000). Now, to the shock of some in Australian journalism, prominent broadcaster and journalist Phillip Adams has been made the subject of a private complaint for “racial vilification” of … Americans; he had published in The Australian one of those all-too-familiar screeds declaring that the United States is a country of “madness”, “the most violent nation on earth”, etc., etc. Writes commentator Tim Blair: “I can’t see a massive amount of difference here. Either Adams must be found guilty, or – my favored option – we throw this vilification garbage in the toilet and return to living like free men.” (Tim Blair weblog, scroll to near bottom of the page for Dec. 9; scroll to third Dec. 7 item (via Matt Welch); Pilita Clark, “Shock as columnist investigated for un-American activity”, Sydney Morning Herald, Dec. 7; Phillip Adams, “Look back in anger”, The Australian, Oct. 6) (see also Oct. 17-18, on the Sunera Thobani case in Canada). And the British government, in order to get its antiterrorism legislation past the House of Lords, “was forced to abandon the controversial attempt to make a new criminal offense of inciting religious hatred”. (“UK passes antiterror law”, CNN, Dec. 14)(see Oct. 19-21). They’re sometimes a more useful bunch than G&S gave them credit for being, those Lords.

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November 2001 archives, part 2


November 19-20 — New frontiers in discrimination law: Harleys among the cyclamens. Lawmakers in Ohio, South Carolina and several other states are pushing legislation that would prohibit businesses from turning away customers on motorcycles. Georgia state Sen. Joey Brush, who rides a Harley-Davidson, “introduced the legislation because of a long-running dispute with Calloway Gardens, a private, nonprofit horticultural garden that doesn’t allow bikers to drive onto the grounds. The ban, in place for the garden’s entire 49-year existence, is meant to protect the serenity and peace for which the grounds are known, said spokeswoman Rachel Crumbley. ‘We feel it’s not a civil right to ride a motorcycle wherever you please,’ Crumbley said.” An Ohio rider who supports such legislation “said a waitress at a restaurant near Cincinnati once placed him and his wife in a corner away from other patrons when the couple pulled up wearing leather boots, chaps and vests.” But the biker community, which in the past has often sided with libertarian causes such as opposition to mandatory helmet laws, is far from unanimous on this one: “As a business owner, they should have right to decide who they want,” says spokesman Steve Zimmer of Ohio’s pro-biker ABATE group — clearly someone who hasn’t forgotten that biking is supposed to be about freedom. (Andrew Welsh-Huggins, “Laws Seek to Protect U.S. Bikers”, AP/Yahoo, Nov. 14). (& letters to the editor, Feb. 28) (DURABLE LINK)

November 19-20 — Can’t find the arsonist? Sue the sofa-maker. “With the two-year statute of limitations almost up, lawyers representing victims of New Jersey’s Seton Hall University dormitory fire are working frantically to find parties to sue.

“The fire, which authorities believe was intentionally started, broke out in the Boland Hall dormitory on Jan. 19, 2000, killing three students and injuring 58 others. Seton Hall, which enjoys charitable immunity from suit, has settled out of court with some of the plaintiffs. Still, lawyers contemplate suits against other people who may have contributed to the conflagration — the arsonists, the maker of the sofa that ignited and any other potentially responsible parties.” (Charles Toutant, “Seton Hall Fire Victims’ Lawyers Still Scrambling to Identify Defendants”, New Jersey Law Journal, Nov. 14) (see June 1, 2000). (DURABLE LINK)

November 19-20 — By reader acclaim: football’s substance abuse policy challenged. “New England wide receiver Terry Glenn has sued the NFL, claiming a disability makes it difficult for him to adhere to certain rules in the league’s substance abuse policy. … Glenn filed the complaint under the Americans with Disabilities Act, but it did not specify what disability Glenn suffers. Glenn claims he should not have been suspended by the NFL for the first four games of the season for violation of the substance abuse policy.” (“Glenn’s suit doesn’t specify disabilities”, AP/ESPN, Nov. 4). Plus: reader Rick Derer, outraged by the Casey Martin episode, has put up an ADA horror stories website to call attention to what he terms “the worst law ever foisted on the American people”.

November 19-20 — Municipal gun suits on the run. Cause for thanksgiving indeed: the lawless and extortionate municipal gun-suit campaign has been encountering one setback after another. “In a major victory for gun manufacturers, the 3rd U.S. Circuit Court of Appeals on [Nov. 16] upheld the dismissal of a suit brought by Camden County, New Jersey, that accused gun makers of creating a ‘public nuisance’ and sought to recoup the governmental costs associated with gun-related crimes.” Arguing the losing side were radical law prof David Kairys and class-action firm Berger & Montague. The three-judge panel was unanimous. (Shannon P. Duffy, “3rd Circuit Shoots Down Gun Suit Theory”, The Legal Intelligencer, Nov. 19). The city of Atlanta is desperately trying to keep its anti-gun suit alive in the face of legislation enacted by its parent state of Georgia making it as explicit as humanly possible that the city has no authority to press such a suit (Richmond Eustis, “Atlanta Asks State Appeals Court to Keep Alive Suit Against Gun Makers”, Fulton County Daily Report, Nov. 15).

Yale law professor Peter Schuck describes the gun lawsuits as based on the “most tenuous” theories yet of government rights of recoupment (“subrogation”) and tort law as “one of the last places” we should look to resolve the policy issues of gun control (“Smoking Gun Lawsuits”, American Lawyer, Sept. 10). And Bridgeport, Conn. mayor Joseph Ganim, who had taken perhaps the highest profile among Northeastern mayors in support of the gun suits, is likely to be less heard from for a while given his indictment last month on two dozen felony counts including extortion, bribery and mail fraud. (He denies everything.) (John Christoffersen, “In Connecticut, a growing and unwelcome reputation for corruption”, AP/Charleston (W.V.) Gazette, Nov. 16; Chris Kanaracus et al, “Ganim on the Spot” (pre-indictment coverage), Fairfield County Weekly, undated). See also Kimberley A. Strassel, “Bummer for Sarah Brady”, OpinionJournal.com, Nov. 15 (expressing optimistic view that municipal gun suits have been contained). (DURABLE LINK)

November 16-18 — Profiling perfectly OK after all. “State highway safety officials said they have received a $700,000 federal grant to help them crack down on two groups of chronic violators of the state’s seat belt law: drivers and passengers of pick-up trucks, and all male drivers and passengers between 18 and 55. … [Louisiana Highway Safety Commission Executive Director James] Champagne said state and federal studies have consistently shown pickup drivers and all male drivers are less likely to buckle up than any other groups of drivers or front-seat passengers. State law requires both the driver and front-seat passengers of vans, sports utility vehicles, cars and trucks to use seat belts. … Asked if the targeting of males and pickup drivers and passengers is profiling of a certain group, Champagne said, ‘Absolutely.'” To recap, then: the federal government strictly bans giving extra attention to 25-year-old males from Saudi Arabia at airport check-in. While they’re driving to the airport, on the other hand, it positively encourages them to be profiled. Perhaps the explanation is that it’s willing to swallow its scruples in order to combat really antisocial behavior — like failing to wear seat belts, as opposed to hijacking planes into buildings. (Ed Anderson, “Police to harness seat belt scofflaws”, New Orleans Times-Picayune, Nov. 10 — via InstaPundit). Meanwhile, the American Civil Liberties Union is soliciting racial-profiling plaintiffs in New Jersey. “The ACLU billboard, which went up last month, shows a photograph of two minority men and between them the words ‘Stopped or searched by the New Jersey State Police? They admit to racial profiling. You might win money damages,’ the sign reads. The ad includes the ACLU’s toll-free number.” (“Billboards in New Jersey Ask for Trooper Praise, Not Profiling Complaints”, FoxNews.com, Nov. 14).

November 16-18 — EEOC approves evacuation questions for disabled. To the relief of many in the business community, the Equal Employment Opportunity Commission has announced that it is not unlawful to ask workers about the state of their health for the purpose of formulating plans for emergency building evacuations. The September attacks called attention to the difficulty experienced in disaster situations by evacuees with such conditions as blindness, paraplegia, extreme obesity, and asthma. While employers may ask about problems that might impede evacuation, they should not insist on getting actual answers; EEOC officials recommend that they let each worker elect whether to disclose the information. The Americans with Disabilities Act has generally been interpreted as conferring on employees a broad legal right to conceal health problems from their employers. (Kirsten Downey Grimsley, “EEOC Approves Health Queries”, Washington Post, Nov. 1).

November 16-18 — Et tu, UT? Perhaps envying California its litigious reputation, the Supreme Court of Utah has ruled that it will not enforce releases in which parents agree to waive their children’s right to sue for negligence. The case involved a child thrown from a rented horse; the mother had signed a release before the accident, but then decided she wanted it invalidated so she could sue anyway. Attorney James Jensen, who represented defendant Navajo Trails, “listed many activities that now may be affected or curtailed, including school field trips, religious organization youth activities, scouting programs, amusement parks and ski resorts. ‘Anybody that provides recreational activities to minors,’ he said.” (Andrew Harris, “Utah High Court Says No Release of Liability to Children”, National Law Journal, Nov. 12).

November 15– “Poor work tolerated, employees say”. We keep hearing that if we were really serious about airport security we’d kick out those ill-paid Argenbright bag screeners and swear in a new 28,000-strong corps of federal employees to replace them. But a “new study concludes that federal workers themselves view many of their co-workers as poor performers who are rarely disciplined. The survey of 1,051 federal workers, conducted for the Brookings Institution’s Center for Public Service prior to the Sept. 11 terrorist attacks, found that on average federal employees believe 23.5 percent of their colleagues are ‘not up to par.’ Meanwhile, only 30 percent believe their organization does a very or somewhat good job of disciplining poor performers.” Those numbers are worse than the ones you get when you poll employees of private firms. At least when Argenbright botches things you can kick it out in favor of another contractor (Ben White, Washington Post, Oct. 30; Gregg Easterbrook, “Fighting the Wrong Fight”, The New Republic Online, Nov. 13).

November 15 — Lawyers’ immunity confirmed. In a dispute arising out of a developer’s plan to buy Fisher Island, home to many celebrities and wealthy persons, a Florida court has ruled that the developer cannot pursue a countersuit for tortious interference against residents who filed lawsuits aimed at derailing the deal, even if it can show they knew the suits to be unmeritorious. The court relied on a 1994 case in which the Florida Supreme Court ruled that an attorney’s acts in the course of litigation are subject to an “absolute” privilege: “We find that absolute immunity must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior such as the alleged misconduct at issue, so long as the act has some relation to the proceeding.” Or, as the Miami legal paper puts it, “litigation itself is immune from litigation”. Put differently, people engaged in litigation boast an “absolute immunity” to engage in injurious behavior that would have a remedy at law if you or I tried it (Julie Kay, “Lawsuits of the Rich and Famous — and Their Two Dozen Law Firms”, Miami Daily Business Review, Nov. 1).

November 15 — Exxon Brockovich vs. Erin Valdez. The Ninth Circuit has struck down as excessive an Alaska jury’s $5 billion punitive award against Exxon over the Valdez oil spill, sending the case back for further litigation; compensatory damages are unaffected by the ruling (Henry Weinstein & Kim Murphy, “Court Overturns $5-Billion Judgment Against Exxon in ’89 Alaska Oil Spill”, L.A. Times, Nov. 8; Yahoo Full Coverage)(update Dec. 30, 2002: judge cuts award to $4 billion). Meanwhile, toxic-tort celebrity Erin Brockovich is helping spearhead a new effort to recruit plaintiffs from among the more than 15,000 workers who took part in the cleanup effort a dozen years ago, some of whom believe that it caused their health to take a turn for the worse. A Los Angeles Times account, after sympathetically relaying what would seem to be the most striking such cases the plaintiff’s team could come up with, concedes that “most health officials remain unconvinced that the cleanup left anyone sick”. (Nick Schulz, “Busy Bee Brockovich Looking to Sting Again”, TechCentralStation, Nov. 9; Kim Murphy, “Exxon Oil Spill’s Cleanup Crews Share Years of Illness”, L.A. Times, Nov. 5; Mary Pemberton, “Erin Brockovich probes Exxon complaints”, AP/ Anchorage Daily News, Nov. 6).

November 14 — “Rejoice, rejoice”. “[Y]esterday’s liberation of Kabul and much of the rest of Afghanistan is a great victory. … The moving scenes from the Afghan capital remind us … that most believing Muslims reject the rigorist insanity that bin Laden and the Taliban promote in their name, and are happy to worship God without having to wear a beard or a burqa. They can sing and dance again; women can work, and children can learn. The Taliban’s scorched-earth devastation of so many Afghan villages reveals their contempt for their own people, and their desertion of so many of their own Arab and Pakistani jihadis shows their capacity to betray. … Today, though, everyone who cast doubt on the possibilities of success and everyone who sneered at American ‘gung-ho’ should observe a period of silence. The rest of us should, to use a famous phrase from another war, ‘just rejoice rejoice'”. ((editorial), Daily Telegraph, Nov. 14; Paul Watson, “Taliban torturers on the run”, L.A. Times, Nov. 14; Christopher Hitchens, “Ha ha ha to the pacifists”, The Guardian, Nov. 14; Dexter Filkins, “In Fallen Taliban City, a Busy, Busy Barber”, New York Times, Nov. 13).

November 14 — Insurance market was in trouble before 9/11. With alarms being heard about an impending crisis in the availability of commercial insurance, it’s worth noting for the record that conditions were deteriorating rapidly in that market even before Sept. 11, mostly because insurers were pulling back from liability exposures: “Among the lines tightening the most are products liability, umbrella liability, contractor liability and nursing home liability, insurers and brokers say,” reported the July 2 issue of the trade publication Business Insurance. Also in scarce supply was coverage for “anything with an occupational disease exposure, like insulation and cell phones,” said one industry observer, Tom Nazar of Near North. “Generally, premiums for most liability lines are increasing anywhere from 25% to 60%,” with transportation risks seeing rate hikes of 100-200 percent and nursing homes 150 percent, said another insurance exec — all this well before the WTC attacks hit carriers with the largest losses from a single insured event in history. (Joanne Wojcik, “Transportation takes biggest hit in hardening market”, Business Insurance, July 2 (online subscribers only), and other contemporaneous coverage in the same publication). Directors’ and officers’ liability was another big problem area, especially for companies in fields such as high tech and telecom, financial services and health care. “The risks facing the steepest premium increases are pharmaceutical companies, nursing homes and contractors, especially organizations located in the litigious markets of California, Illinois and New York, insurance executives said.” In workers’ comp, “loss severity continues to deteriorate”.

And then there was asbestos: an August Standard & Poor’s report indicated that insurers were setting aside an additional $5-10 billion this year for asbestos claims, above earlier amounts reserved. “The implications to the insurance community are potentially devastating,” says the report. “Other analysts and ratings agencies recently have estimated that the insurance industry would need to put up as much as $20 billion to $40 billion more to cover their asbestos exposure. In May, ratings firm A.M. Best Co. calculated that insurers have set aside $10.3 billion to pay additional asbestos claims, having already paid out $21.6 billion.” A not-insubstantial portion of those sums, as we know, will go to compensate persons who are not sick from asbestos and never will be — raising once again the question of why we don’t try harder as a society to reserve the limited pool represented by insurance for situations where it’s really needed (Christopher Oster, “Insurers to Set Aside Additional Billions For Asbestos Claims”, Wall Street Journal, Aug. 1 (online subscribers only)). On proposals to bail out insurance markets since the attacks, see Scott Harrington and Tom Miller, “Insuring against terror”, National Review Online, Nov. 5. (DURABLE LINK)

November 14 — “Diabetic German judge sues Coca-Cola for his health condition”. Why should American lawyers have all the fun? In a trial that began Monday in Essen, Germany, Hans-Josef Brinkmann, 46, a judge in the east German town of Neubrandenburg, says the beverage company is partly responsible for his developing diabetes after drinking two bottles of Coca-Cola a day for years. He further “disputes the contention of the drinks company that Coca Cola is a ‘flawless foodstuff’ … Brinkmann plans to bring a similar case against Masterfoods, manufacturers of Mars Bars, Snickers and Milky Way chocolate candy, in January.” Whether Herr Brinkmann wins or loses these suits, we hope he’ll come to America — we bet he’d have no trouble landing a job at one of our law schools. (AFP/Times of India, Nov. 14) (more).

November 13 — From the paint wars: a business’s demise, a school district’s hypocrisy. “Sherwin-Williams Co. acquired Mautz Paint Co. Thursday after the local company said it could no longer afford facing a costly lawsuit filed by the city of Milwaukee. Bernhard F. ‘Biff’ Mautz, the company’s chairman of the board, said negotiations to sell the [family-owned] firm intensified in April after the city of Milwaukee filed suit seeking more than $100 million in damages over the manufacture of lead-based paints decades ago.

“‘Although we believe the city’s case is meritless and Mautz will ultimately be absolved of any responsibility, for the first time in our history we were faced with years of litigation, which even if (the plaintiff was) unsuccessful, would destroy our small company,’ he said. …

“The sale price was not released, but Mautz President Dan Drury said it was discounted to reflect the costs of the lawsuit. Founded in 1892, Mautz employed 260 people at its 33 retail stores and manufacturing plant. It had sales of $32 million last year. …

“Wisconsin Manufacturers & Commerce said the sale of the one of Madison’s oldest businesses will make it more difficult for the state to attract new businesses. ‘This is a sad day in the state of Wisconsin,’ said James S. Haney, the organization’s president. ‘This is every business person’s worst nightmare. Mautz got in the gun sights of the contingency fee trial lawyers and the bureaucrats and now another homegrown locally owned business with strong ties to the community is gone.'” (“Mautz announces acquisition by Sherwin-Williams”, AP/Janesville (Wis.) Gazette, Nov. 9).

Meanwhile: In Houston, where contingency-fee lawyers have been recruiting local school districts to go after paint companies, the lawsuit filed by the Spring Branch School District claims that residual paint from decades past exposes students and teachers to “a substantial risk of lead poisoning” — a dramatic charge indeed. Which left Jon Opelt, executive director of Citizens Against Lawsuit Abuse Houston and the parent of a child in the district, wondering why “the school district has never notified me, as a parent, of the presence of any health or safety risks related to lead. No cautionary notes have been sent home with my children. No alarming studies have been released discussing the severity of the problem in our schools.'”

Which naturally raises the question: is there a genuine lead hazard, which the district has been covering up from parents, or just a phony hazard, which their lawyers are conjuring up in an effort to squeeze money from manufacturers? Opelt: “Ron Scott, a lawyer for the school district, is quoted in a Houston Chronicle article as saying: ‘This isn’t a panic issue. People don’t need to feel their schools are unsafe.’ Duncan Klussmann, a district administrator, told me, ‘Your child is not at risk.’ These are the very same people who signed onto a lawsuit that says there is a ‘substantial risk of lead poisoning.’ What are we to believe? District officials are telling parents their schools are safe but their lawsuit demands millions of dollars for addressing a dangerous situation caused by lead paint. Both cannot be true.” (CALA Houston website, “Parent Urges School District To “Get The Lead Out“, “Contrary to Other Reports“, David Waddell, “Why Should Safety Be a Secret?“, Annette Baird, “District: Lead-paint concerns in check”, Houston Chronicle, Oct. 17). (DURABLE LINK)

November 13 — Update: ousted quartet member wins damages. “A Pennsylvania judge has ordered three members of the Audubon Quartet to pay their former colleague David Ehrlich more than $600,000 in damages, adding yet another dramatic twist to the legal battle that has largely silenced the internationally acclaimed quartet since February 2000 and cost the group its home at Virginia Tech.” (Kevin Miller, “Ousted quartet member should receive damages, judge rules”, Roanoke Times, Oct. 16; “In Support of the Audubon Quartet“; summary of court opinion) (see June 5, 2000, June 14, 2001). Update May 10-12, 2002: defendants could lose house.

November 13 — Women’s rights: British law, or Islamic? According to columnist Theodore Dalrymple of The Spectator, a misguided multiculturalism has led authorities in the United Kingdom to adopt a hands-off policy toward some British Muslim families’ trampling of their young daughters’ rights (“The abuse of women”, Oct. 27).

November 12 — “Morales trying to ‘clear the air’ before campaign”. Many assumed the political career of former Texas attorney general Dan Morales was dead, dead, dead after allegations began flying in the papers about the circumstances under which he’d hired outside lawyers to represent the state in the tobacco affair and share one of the largest fee windfalls in history (see Sept. 1-3, 2000). But now Morales wants to run for the U.S. Senate seat being vacated by Phil Gramm and is insisting with new vehemence that he never acted improperly and that it’s all been a misunderstanding. Two of his lawyers have “asked a state district court in Austin to let Morales lay the groundwork for a possible defamation suit by taking the sworn testimony of four former associates. Morales wants to question John Eddie Williams Jr. of Houston — one of five trial lawyers who shared $3.3 billion in legal fees from the tobacco case — and three former assistants in the attorney general’s office — Harry Potter of Austin and Jorge Vega and Javier Aguilar of San Antonio. He indicated that Williams and Potter, who was actively involved in the tobacco suit, could be targets of any suit he may file.” Pull up a chair, this promises to be interesting (Clay Robison, Houston Chronicle, Nov. 7). Morales also continues to deny “allegations by Houston trial lawyer Joe Jamail that Morales improperly solicited $1 million from each of several lawyers he considered hiring for the tobacco suit.”

November 12 — Short-sellers had right to a drop in stock price. At least that’s the premise underlying this press release and lawsuit from a class action law firm seeking the right to sue on behalf of short-sellers who feel their speculative bets against the stock of Intelli-Check Inc. were stymied by the company’s allegedly over-sunny fiscal projections. (“Speziali, Greenwald & Hawkins, PC Announces the Filing of a Class Action Suit on Behalf of Short-Sellers of Intelli-Check, Inc. (Amex: IDN) Securities”, Yahoo/PR Newswire, Oct. 18).

November 12 — “U.S. Debates Info on Chemical Hazards”. “Separate hearings in the House and Senate [were] held this week to reassess the safety of chemical and industrial facilities in the light of recent terrorist attacks. A key policy at stake is the so-called ‘right to know’ law, which requires the federal government to publicly disclose sensitive information about facilities around the country that could be used by terrorists to target the most dangerous locations.” Jeremiah Baumann, a spokesman for the Nader-empire U.S. Public Interest Research Group, called for preserving public access to the sensitive information. “‘Let’s at least make the bad guys work for it,’ countered Amy E. Smithson, a chemical and biological weapons analyst for the Henry L. Stimson Center think tank.” Smithson said “[t]he Clinton EPA’s decision to post those plans for some 15,000 plants on the Internet in August 2000 ‘wasn’t just bad, it was colossally bad’.” (John Heilprin, AP/Yahoo, Nov. 8) (see Oct. 1). More: Carol D. Leonnig and Spencer S. Hsu, “Fearing Attack, Blue Plains Ceases Toxic Chemical Use”, Washington Post, Nov. 10 (chlorine use at Washington sewage treatment plant); Jonathan Adler, “How the EPA Helps Terrorists”, National Review Online, Sept. 27; “Environmental Danger”, Oct. 11; Angela Logomarsini, “Laws that Make Terror Easy”, New York Post, Oct. 12; “‘Right To Know’ Hearings – Taking Away Terrorist Tools”, Competitive Enterprise Institute press release, Nov. 7.

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November 2000 archives, part 2


November 20 — Flow control. The Florida Supreme Court has a liberal and activist reputation, which is why many Gore supporters see it as their ace in the hole in the recount controversy (John Fund, “On the Bench for Gore?”, OpinionJournal.com (Wall Street Journal), Nov. 15; Robert Alt, “The Florida Supremes”, National Review Online, Nov. 16). “To scrounge for every last vote, Gore has flooded Fort Lauderdale with tough, seasoned Democrats, the sort who are used to keeping wafflers in line and to count and recount votes until they know exactly what it will take to outdo their opponents. Many of the hired hands speak with a Boston brogue,” reports the L.A. Times. A lawyer explains the routine to volunteers: “‘It’s very, very important that if you see any kind of mark — a scratch, a dent, a pinprick in Al Gore’s column — that you challenge.’ When someone then asked what they should do if they found a Bush ballot with an indent, the lawyer said: ‘Keep your lips sealed.'” (Elizabeth Mehren and Jeffrey Gettleman, “Seasoned Democratic Army Hits the Shores of Florida”, Los Angeles Times, Nov. 17). “[I]f you’re just counting existing ballots, there shouldn’t be any chads on the counting-room floor. But, whether by accident or design, the little fellers keep detaching themselves from the ballot, thereby creating more and more new votes.” (Mark Steyn, “Smooth man Gore starts to play rough”, Daily Telegraph (UK), Nov. 19; “Gore’s law: When you’re beaten to the punch, it’s the chads that count”, Nov. 17). See also Charles Krauthammer, “Not By Hand”, Washington Post, Nov. 17; Jurist special page on election 2000.

November 20 — “Judge fines himself for missing court”. “Hamilton Municipal Court Judge Paul Stansel believes he has no more right to skip court than the people who have to appear before him. Stansel found himself in contempt of court and fined himself $50 — half a month’s salary — after missing the Sept. 27 monthly court session because he was tending to his sick pony named Bubba and forgot it was court day, he said.” (Harry Franklin, Columbus Ledger-Enquirer, Nov. 7).

November 20 — How to succeed in business? Earlier this fall it was widely reported that Christian Curry received nothing from the settlement of his race and sexual orientation suit against Morgan Stanley Dean Witter, which had fired him after nude pictures of him were published in a sexually explicit magazine. See, for example, “Curry Drops Suit Against Morgan Stanley Dean Witter” (press release), Yahoo/Business Wire, Sept. 15 (quoting Curry: “I will receive no payment”); Dan Ackman, “L’Affaire Curry Ends In Settlement”, Forbes.com, Sept. 15 (“Curry got nothing, and said he was happy with that.”). However, the New York Post reported last month that Curry arrived at a press conference in a new red Ferrari to announce that he had just paid $2 million to buy a Harlem newspaper and “plans to start a modeling agency, a film and TV production company and a hedge fund.” According to the paper, “sources” tell it that the investment firm paid Curry $20 million on condition he keep quiet about the case. “The settlement was brokered in September, right before Morgan Stanley CEO Philip Purcell was to give his deposition.” Curry declined at the press event to comment on the status of his lawsuit; it is not clear how the earlier and more recent accounts can be reconciled with each other. (Evelyn Nussenbaum, “Curry Buys Newspaper, Has Big Plans”, New York Post, Oct. 20). See update, Nov. 23, 2003.

November 17-19 — Punch-outs, Florida style. Palm Beach tobacco law magnate Robert Montgomery is a frequent subject of commentaries in this space (see April 12, Aug. 8-9, 2000; Aug. 21, 1999; estimated tobacco fee $678 million), and somehow we knew he’d turn up as a player in the recount mess. Sure enough he’s acting as attorney for embattled county elections director Theresa LePore (Kathryn Sinicrope and Michele Gelormine, “Recount waiting game continues”, Palm Beach Daily News, Nov. 16). Montgomery, a major party donor, recently represented without charge the incumbent Democratic court clerk in Palm Beach against a public records lawsuit filed by Republican challenger Wanda Thayer; in that capacity he gave Thayer reason to feel really sorry she ever filed the action, putting her through a harsh deposition and menacing her with having to pay his $350-$500 /hour fee if she lost. Someone who represents the clerk of court free of charge against her opponent in a politically sensitive case is likely to stay a pretty popular guy around the courthouse, no? (Marc Caputo, “Attorneys carry clerk’s campaign”, Palm Beach Post, Sept. 26).

In the Broward County recount Republicans have noticed no fewer than 78 of the loose bits of paper known as “chads” lying on the floor of the recount facility and say the punchcard ballots are being over-handled in chaotic fashion by ad hoc election workers, some of them unknown to the official in charge. They’ve asked that the recount be halted until more secure procedures can be instituted, but a judge turned them down and a Democratic attorney ridicules their concerns (Sean Cavanagh, “Gore gets 13 more votes so far in Broward recount”, Fort Lauderdale Sun-Sentinel, Nov. 16; Marian Dozier, “Chad ‘fallout’ grows the more ballots are handled”, Nov. 15). “Q. If lawyers for Democrats and Republicans beat each other’s brains out for a few months in Florida, won’t that result in fewer lawyers? Who can argue with that? A. Like night crawlers, a complete new lawyer grows out of any piece of attorney sliced off in court. Their regenerative powers are frightening.” (Gary Dunford, “Night crawlers”, Canoe/Toronto Sun, Nov. 15).

November 17-19 — “U.S. Holocaust lawyer plans Austria train lawsuit”. Much-publicized New York attorney Edward Fagan is drumming up business among survivors of the Alpine tunnel calamity, which killed as many as 160. “The suits most likely would be filed in U.S. courts because they typically could award bigger damages than overseas courts”, even though the article cites no nexus whatsoever between the disaster and the United States as regards the great majority of victims, who were of Austrian or German nationality. Imagine how strange it would seem if a train full of Americans and Canadians crashed in Colorado and some lawyer from Austria flew in to propose that lawsuits be filed in his country. (Reuters/FindLaw, Nov. 14).

November 17-19 — “Tax collector found to owe $3,500 in delinquent taxes”. From Scranton, Pa., another entry for the do-as-we-say file: “I have no defense,” says Thomas Walsh, director of the county’s Tax Claim Bureau, of the city property tax bill on his home, which he’s left unpaid since 1991 and has now mounted to more than $3,500. “I just got behind.” (“Pay thyself”, AP/Fox News, Nov. 13).

November 17-19 — “Coca-Cola settles race suit”. The Atlanta-based soft-drink maker has agreed to pay $192.5 million to settle charges of race bias, “described by the plaintiffs as the largest ever in a race discrimination class action suit”. (CNNfn, Nov. 16) (see July 21, July 19).

November 16 — Palm Beach County “under control”. “There was evidence that the Gore campaign hoped to muscle up the forces at its disposal. An e-mail circulated to a trial lawyers organization sought at least 500 attorney volunteers to help out with recounts in selected counties.” (David Espo, “Bush Holds Narrow Lead in Fla.”, AP/Yahoo, Nov. 15). “The request was passed along on the Internet E-mail list of the National Association of Trial Lawyer Executives (NATLE) by the executive director of the group, Kathleen Wilson, suggesting they pass along the request to lawyers on the Internet E-mail lists they’re on.” The volunteer lawyers would be deployed in Volusia, Miami-Dade and Broward Counties, with the email describing the Gore forces as “comfortable that Palm Beach County is under control.” The organization NATLE “includes many executive directors and other officials with lawyer groups”. (“Gore Campaign Recruiting Lawyers”, AP/Washington Post, Nov. 14).

Judge-shopping? “Although most of the lawsuits filed to date have been in state court, one Gore supporter filed an action in federal court last week only to withdraw it the same day (apparently out of a concern that the judge assigned to the case, Reagan appointee Kenneth Ryskamp, would not look favorably upon it).” (Jay Lefkowitz, “It’s the Law, Stupid”, Weekly Standard, Nov. 20). Meanwhile, “[a] group with Republican links sued TV networks Tuesday and accused them of discouraging voters from going to the polls in the Florida Panhandle by erroneously projecting Al Gore would carry the state.” (“Group Sues Over Gore Projection”, AP/Washington Post, Nov. 14). “In the Stephen Sondheim song, when something bad happens in the circus, they send in the clowns. In America’s political circus, they send in the lawyers.” (Gavin Esler, “Don’t let the lawyers make a crisis out of America’s Political Drama”, The Independent (UK), Nov. 13) (cites our editor).

November 16 — Judge shopping, cont’d. U.S. International Trade Commission administrative law judge Sidney Harris has reprimanded Rambus Inc. for having abruptly withdrawn its patent violation case against Hyundai Electronics Industries Co. after it was assigned to him; the judge, who has a reputation as tough on patent-holders’ claims, concluded that the company did not want him to be the one to handle the case and had engaged in “blatant” judge shopping. The company denies the allegation. (Jack Robertson, “Rambus Slammed For ITC ‘Judge Shopping'”, Electronic Buyers News, Nov. 15; Dan Briody, “Litigation headaches send Rambus stock skidding”, RedHerring.com, Aug. 30).

November 16 — They call it distributive justice. Following the lead of numerous other overseas governments and other entities that have jumped on the tobacco-suit bandwagon in hopes of finding money, Saudi Arabia’s state-owned King Faisal Specialist Hospital says it is preparing litigation against international tobacco companies to recover the costs of treating smokers, to be filed in American courts and elsewhere. If successful, the litigation will presumably succeed in raising the price per pack paid by poverty-level smokers in Arkansas and West Virginia in order to ship the money off to that very deserving recipient, the government of Saudi Arabia. (“Saudi hospital to sue tobacco firms for $2.6 bn”, AP/Times of India, Nov. 8) (& see update, Dec. 10, 2001)

November 15 — Foreign press on election mess. “‘Got a problem? Get a lawyer’ has become a maxim of American life, whether you scald yourself with a McDonald’s coffee or lose a presidential election.” (Philip Delves Broughton, “Lawyers will be winners of contest born in Disneyworld”, Daily Telegraph (UK), Nov. 10). “The confusion over the election results has paved the way for a stealthy and rapid seizure of power in the US. The lawyers have truly taken over.” (Julian Borger, “Lawyers are back: US is on trial”, The Guardian (UK), Nov. 11). “We are not in Florida or Kansas anymore. We are in . . . Chad.” (Mark Steyn, “She held up the ballot and she saw the light”, National Post (Canada), Nov. 13).

November 15 — Beep and they’re out. DuPage County Associate Judge Edmund Bart “has taken extreme offense to Traffic Court visitors who allow cellular phones or pagers to ring when court is in session. He has dealt with them extremely — by throwing those visitors behind bars.” (“Time for Some Order from the Court” (editorial), Chicago Tribune, Nov. 11).

November 15 — “ATLA’s War Room”. Much feared by defendants, the 61 litigation groups of the Association of Trial Lawyers of America enable plaintiff’s lawyers to map out joint strategy and share in the “exchange of documents, briefs, depositions, expert testimony, and general plaintiffs’-side lore”. The groups are noted for “Kremlinesque secrecy”: “Group chairmen, for instance, are not supposed to identify themselves as such in public, and journalists can only get their names from ATLA by agreeing not to quote them as chairmen. … The association does not post the list of litigation groups on its public Web site.” However, that list includes (according to Alison Frankel of The American Lawyer): AIDS, automatic doors, bad faith insurance, benzene/leukemia, birth defects, breast cancer, casino gaming, chorionic villus sampling (CVS), computer vendor liability, firearms and ammunition, funeral services, herbicide and pesticide, inadequate security (and its subgroup, the Wal-Mart Task Force), interstate trucking, lead paint, liquor liability, nursing homes, Parlodel, pharmacy, Stadol, tabloid outrage, tap water burns, tires, truck underride, and vaccines. Recent additions include firefighter and EMS hearing loss, Allercare subgroup of herbicides and pesticides group, laser eye surgery malpractice, MTBE, Propulsid, and Rezulin. (Alison Frankel, “ATLA’s War Room”, The American Lawyer, Oct. 16).

November 14 — Columnist-fest. People writing about things other than the election mess:

* How long would Mark Twain’s Tom Sawyer last if he were growing up today? He’s the kind of boy who plays hooky from class, joins a gang and commits petty crime, enjoys violent literature (pirate stories), tortures the family cat and even smokes. “Doubtless he’d be in therapy three times a week and jacked up on Ritalin. Or — most likely — he’d be in jail.” (Alex Beam, “Tom Sawyer and the end of boyhood”, Boston Globe, Oct. 31).

* Don’t count on the black-reparations bandwagon to provide benefits over the long term to anyone but the lawyers and other middlemen in charge, argues Linda Chavez (“Johnnie Cochran plays his card”, TownHall, Nov. 8).

* The case for Paula Jones’s outraged modesty in that Arkansas hotel room is looking pretty thin now that she’s taken her clothes off for Penthouse, but what exactly did reformers think would happen once the law began to turn unsubstantiated sex stories into enormously lucrative potential claims? “Women like Jones have been lured into becoming the workplace equivalent of Third World terrorists strolling around the office with suitcase bombs.” (Sarah J. McCarthy, “The Victim in the Centerfold”, LewRockwell.com, Nov. 11).

November 14 — “Fla. DUI Teen Sues Police”. “A teen-age driver seriously injured in an accident is suing the city because a police officer failed to arrest him for drunken driving minutes before the crash.” Richard L. Garcia of Bradenton, Fla. alleges that officers told him to drive home rather than taking him into custody despite his intoxication, which makes it their fault that he got into a serious accident minutes later. (AP/Yahoo, Nov. 13).

November 14 — “Survey: Jurors Anti-Big Business”. “Potential jurors often mistrust corporations and think they must impose billions of dollars in punitive damages to send them a clear message, according to survey results released Friday.” The survey is set to appear in this week’s National Law Journal. (Reuters/CBS News, Nov. 10).

November 14 — “Internet Usage Records Accessible Under FOI Laws”. “In an opinion sure to heighten the tension between some parents and school systems over the Internet’s role in publicly financed education, a New Hampshire judge has decided that a parent is entitled to see a list of the Internet sites or addresses visited by computer users at local schools.” Unless overturned on appeal, the ruling will entitle parent James M. Knight of Exeter, N.H. to inspect the logs of general student and faculty Internet use, not just those of his own children. However, the log files will be redacted in an attempt to prevent the identification of individual user names and passwords. Knight, a proponent of filtering/blocking software, had made the request under the state open records law. (Carl S. Kaplan, “Ruling Says Parents Have Right to See List of Sites Students Visit”, New York Times, Nov. 10 (reg); Slashdot thread).

November 13 — Election hangs by a chad. Once underway in earnest, plenty of observers fear, litigation on the 2000 presidential vote will “only spawn more litigation and drag on and on, to the detriment of the political system.” (R.W. Apple Jr., “News Analysis: Experts Contend a Quick Resolution Benefits Nation and Candidates”, New York Times, Nov. 12 (reg)). With the filing of a federal court action by the Bush people to block a planned “hand recount” in Palm Beach County, the legal battling now officially involves the candidates themselves; earlier, the Gore people had been backing litigation filed in the name of Florida residents without actually filing on their own (David S. Broder and Peter Slevin, “Both Sides Increase Legal Wrangling As Florida Begins Slow Hand Count”, Washington Post, Nov. 12). “There is a well-known trick among statistical economists for biasing your data while looking honest. First, figure out which data points don’t agree with your theory. Then zealously clean up the offending data points while leaving the other data alone.” Such a bias would be introduced in the Florida vote by recounting pro-Gore counties like Palm Beach, Broward and Dade so as to validate more ballots by inferring voters’ intent, without doing the same for pro-Bush counties like Duval (Jacksonville). (Edward Glaeser, “Recount ‘Em All, or None at All”, Opinion Journal (Wall Street Journal), Nov. 11). “The leverage that the Gore camp has,” writes columnist Molly Ivins, “is an injunction to prevent certification of the Florida result until that’s settled [namely, its expected demand for a Palm Beach County revote if the pending “hand recount” doesn’t do the trick]. Without Florida, Gore wins the Electoral College.” Admittedly, however, “[a] system that managed to acquit O.J. Simpson cannot be counted upon to produce justice.” (“The right to seek justice is undeniable in Florida”, Fort Worth Star-Telegram, Nov. 11).

If you’re looking for truly ripe ballot irregularities, George Will suggests, look to the heartland: “Election Day saw Democrats briefly succeed in changing the rules during the game in Missouri: Their lawyers found a friendly court to order St. Louis polls to stay open three hours past the lawful 7 p.m. closing time. Fortunately, a higher court soon reimposed legality on the Democrats and ordered the polls closed at 7:45.” (“It All Depends on the Meaning of ‘Vote'”, New York Post, Nov. 12). A nice thing about those emergency public donation funds to hire teams of lawyers: there’s no limit on contributions and the parties will be really grateful (David Greising, “Al’s Now a Boy Named Sue, and It’s Not Helping”, Chicago Tribune, Nov. 10). Meanwhile, we note that a prominent Democratic campaign-law expert is denying that his party is “overlawyering” the Florida situation, while the New York Post‘s Rod Dreher uses another variant on the same term in discussing mistaken ballots: “Despite what some in this overlawyered culture seem to believe, the courts have no obligation to protect people from their own carelessness.” (Don Van Natta Jr. and Michael Moss, “Counting the Vote: The Nerve Center”, New York Times, Nov. 11, quoting Robert F. Bauer, no longer online; New York Post, Nov. 12).

November 13 — Vaccine compensation and its discontents. One of the more recently adopted no-fault compensation systems aimed at displacing personal injury litigation is the federal childhood vaccine compensation program, which since 1988 has paid out $315 million to some 1,445 claimants and turned away another 3,372 claimants on the grounds that they could not prove that the vaccines caused injury. The system has substantially reduced the number of lawsuits filed against makers of DPT (diphtheria, tetanus and pertussis (whooping cough)), which “dropped from 255 in 1986 to 4 in 1997”. However, the no-fault system itself partakes of some of the drawbacks of litigation, including delay and adversarialism. One thing it has succeeded in curbing, however, is jackpots for trial lawyers: “Lawyers representing claimants get paid whether a claim is successful or not, but they get closely monitored hourly rates — not the jackpots they occasionally win when they sue, say, tobacco or tire companies.” (Doug Donovan, “Needle damage”, Forbes, Sept. 4).

November 13 — Don’t give an inch. In Sunderland, England, merchant Steven Thoburn has become the first vendor to be prosecuted for sticking to English weights and measures despite an official mandate to convert to European metric alternatives. To coordinate with European Union rules, “British laws came into effect at the beginning of this year imposing fines of up to $8,000 and possible imprisonment on retailers if they refuse to adopt liters and meters.” (“Defiant Brit Vendor Taken To Court”, AP/FindLaw, Nov. 8).

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May 2000 archives, part 2


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).

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