“A federal appeals court has revived an abuse of process suit against a law firm and lawyer that allegedly used unfair tactics in litigation — including hiding documents, obstructing discovery and fabricating privilege claims — after finding that a lower court improperly determined that such conduct was immune from suit under the doctrine of judicial privilege.” A Philadelphia judge had found that insurer Fireman’s Fund and its Washington, D.C.-based law firm, Gilberg & Kiernan, had committed extensive misconduct in defending asbestos coverage claims brought by policyholder General Refractories Corp. GRC proceeded to file an abuse of process action against the insurer and its law firm, but a federal judge ruled that lawyers enjoy near-absolute immunity from abuse of process claims when engaged in litigation, under a privilege for “judicial communications”. Not so, said an appeals court, which construed the privilege more narrowly and reinstated the suit: it would frustrate the purpose of rules against abuse of process to let lawyers exempt themselves so sweepingly from liability for such abuse. (Shannon P. Duffy, “Suit Over Litigation Tactics Revived”, The Legal Intelligencer, Jul. 30)(via Legal Reader).
From the monthly archives:
July 2003
Administrators of upstate New York cities are complaining that the cost of litigation saps their budgets: Rochester paid out $443,000 in 2002, while Buffalo writes between $700,000 and $900,000 worth of settlement checks a year. But maybe they should count their blessings: “Last year, despite its massive deficit, New York City paid out $525 million.” (Rick Armon, “More citizens taking governments to court”, Rochester Democrat & Chronicle, Jul. 28). The figures represent a municipal budgetary burden of about $2 for each of Rochester’s 219,000 residents, perhaps closer to $3 if some share of the $253,000 in outlays for surrounding Monroe County is ascribed to the city. The comparable figure for New York City (in which city and county government are merged) is $65 per resident or $260 for a family of four.
Daniel Gross reports on a doughty band of tax protesters who insist that they are not actually obliged by law to engage in payroll tax withholding, and quotes our editor as describing this position as arising from “folk law”, in the form of legal claims that “bubbled up without any encouragement from the legal profession.” (”America’s Oddest Tax Dodge – Can Section 861 of the Internal Revenue Code save you from income taxes?”, Slate/MSNBC, Jul. 30).
On Monday NBC News ran a supposed “in-depth report” on the gun-suit preemption bill now pending in Congress (no transcript online), essentially parroting the arguments of the bill’s critics. Blogger Alphecca provides a concise critique (Jul. 28). See Apr. 4-6, Apr. 25-27. J.R. Labbe of the Fort Worth Star-Telegram scoffs at the rather desperate efforts of some gun-litigation backers to spin Judge Weinstein’s dismissal of the NAACP lawsuit as somehow a victory for them (”Gun debate lacks common sense”, Tallahassee Democrat, Jul. 30). The National Association of Manufacturers warned this March that the precedents being sought by anti-gun litigators, “if widely applied, could result in bankruptcies for countless manufacturers of lawful products … ‘Today it?s handguns, but tomorrow it could be power tools, golf clubs or automobiles,’ said NAM Vice President for Litigation Quentin Riegel.” (NAM press release, Mar. 26). See also Dave Kopel, “Ban lawsuits that hurt legal gun industry”, Philadelphia Inquirer, May 19 (”At an American Bar Association symposium in 1999, one of the plaintiffs’ attorneys for the antigun lawsuits explained that the attorneys had read the Dun & Bradstreet reports on the firearms companies, estimated how much the companies could spend defending themselves against litigation, and then filed so many cases in so many jurisdictions that the gun companies would not be able to spend the money to see the cases through to a verdict.”)
On May 23 a 12-person jury unanimously rejected a price-fixing suit brought against ten American and Japanese seafood companies over prices paid to fisherman in Alaska’s Bristol Bay. By that point, however, other defendants had paid $40 million to settle out of the case. But fishermen shouldn’t expect to see much of that $40 million: their lawyers want $16.5 million as their contingency share, while the defendants who prevailed at trial want at least $11 million to pay their lawyers (Alaska, unlike the 49 other American states, follows a modified loser-pays system, though it seems the state legislature passed a special bill to clarify its application in this case). “Jack Keane, a veteran Bristol Bay fisherman who lives in Anchorage, said he’s not surprised the lawyers might take much of the money. ‘The cynics kind of said, “Well, that’s the way it would go anyways,”‘ he said. ‘God, it’s a messy legal thing.’ … The leading commercial fishing trade group, United Fishermen of Alaska, has said it doesn’t support an appeal and hopes the seafood companies recoup their legal expenses to plow back into an industry they say suffered major damage from the lawsuit in the key salmon market of Japan.” (Wesley Loy, “Lawyers on both sides of salmon case want to get paid”, Anchorage Daily News, Jul. 30).(& see updates Dec. 14, Feb. 22).
Upholding an advisory jury’s verdict in favor of the firearms industry, federal judge Jack Weinstein has dismissed the NAACP’s public nuisance lawsuit against 68 gun manufacturers and distributors, discussed earlier in this space. The National Association for the Advancement of Colored People had asked the court to declare the manufacturers and distributors liable for creating a public nuisance under New York law. Rather than monetary damages, the NAACP sought “sweeping restrictions on buyers and sellers of handguns.” (Tom Hays, “Judge Dismisses NAACP Gun Lawsuit,” Assoc. Press, July 21, 2003). Judge Weinstein said that “while the NAACP’s evidence showed some gun retailers were careless in allowing a large number of handguns to enter the illegal market, the group did not prove its members suffered unique harm.” (”Court dismisses NAACP gun suit,” Reuters, July 21, 2003). His 175-page opinion is available here.
Judge Weinstein’s ruling follows by a month a Manhattan appellate court’s decision affirming the dismissal of state Attorney General Eliot Spitzer’s lawsuit against gun manufacturers, also brought on public nuisance grounds.
More on the legal push across the country to reclassify humans as “guardians” rather than mere owners of pets, and the related-but-different push to expose veterinarians to sky’s-the-limit liability for the emotional significance of Fluffy and Snowball, rather than just the token damages that would be agreed to in virtually any imaginable contractual agreement they might reach with their paying human customers. (For earlier items, see Jan. 30-31, 2002, Feb. 12, 2003, and our animal-rights coverage generally (pre-6/03)). (”Malpractice Cases Spike … for Pets”, Christian Science Monitor/ABCNews.com, Jul. 29). Reader Sam Gaines comments: “I am deeply involved in the animal welfare/rescue movement here locally, but I see grave danger in this move — the potential for worse, not better, conditions for abandoned animals based on such initiatives is tremendous. Just as laws requiring fees for unneutered pets generally backfire into even more homeless animals than before, this feel-good meddling will simply drive vet costs further off the scale, and the animals will ultimately suffer.”
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“Francine Parrington lost her arm when she crashed into a tree while driving with a blood alcohol level of 0.118 but says it wasn’t her fault and is suing the hotel for serving her too many drinks. … She crashed into exactly the same tree a year before and claims her drinking habits were caused by her marital difficulties with a straying husband.” (Angela Kamper, “Drink-driver sues the hotel”, Jul. 30)). They do seem to get a lot of these cases down in Oz, don’t they? See, for example, the cases described in this space May 12. (Update Dec. 21: she loses case)
P.S. In Oslo, Norway, a court has just thrown out a man’s conviction on charges of drunken driving on the grounds that he had been much too drunk at the time to give proper consent for the police to interrogate him; the resulting confession had provided the basis for the conviction (”Drunk driver acquitted for drunkenness”, Aftenposten, Jul. 30)(via James Taranto’s Best of the Web, OpinionJournal, Jul. 30).
Congress’s General Accounting Office confirms what the Department of Health and Human Services and Joint Economic Committee (PDF) have found before it: “Increases in medical malpractice insurance rates in some states, including Pennsylvania, were due largely to high payoffs on legal claims, according to a congressional survey released yesterday. …’Losses on medical malpractice claims appear to be the primary driver of increased premium rates in the long term,’ the report states. ‘Such losses are by far the largest component of insurer costs.’” (Lara Jakes Jordan, “Malpractice insurance rise tied to legal claims”, AP/Pittsburgh Post-Gazette, Jul. 29). Study: “Medical Malpractice Insurance: Multiple Factors Have Contributed to Increased Premium Rates”, Jun. (PDF format).
P.S. In August 2003 the GAO released a further look at medical malpractice problems, “Medical Malpractice: Implications of Rising Premiums on Access To Health Care“. Congress’s Joint Economic Committee later (Dec.) published a policy brief offering perspective on the GAO findings.
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In the latest example of “regulation through litigation,” a New Orleans jury decided Monday in a class action case that tobacco companies should pay for stop-smoking programs for healthy Louisiana smokers — even though the jury also decided that cigarettes are not a defective product. The jury did, however, “reject[] a claim that the companies should finance medical tests for up to 1.5 million current and former smokers, saying free checkups for smokers who show no signs of disease aren’t necessary.” (”Jurors give split tobacco verdict,” The (N.O.) Times-Picayune, July 29; “Medical Monitoring,” National Public Radio, July 29).
Hi. I’m Leah Lorber, and I’ll be your guest blogger for the next week. I’m a lawyer working on civil justice policy at a Washington, D.C. law firm, where I’m also co-counsel to the American Tort Reform Association. (Obligatory disclaimer: any opinions I post are my own and may or may not be shared by ATRA, although I’d be really surprised if there are any major discrepancies.) I’m also a former newspaper reporter, and I’m looking forward to seeing if writing legal briefs has forever ruined my ability to write sentences of 25 words or less. That said, I’ll begin. Thanks to Walter Olson for having me here.
Justice Peter Young, the Chief Judge in Equity of New South Wales, has warned estate lawyers “that if they continue to ravage estates by charging high legal costs, judges will step in and cap costs” and “that their fees may be in doubt if they allow big bills to be run up by ‘claimants [who] are not particularly concerned about how much they get out of the estate as long as they ruin it for everybody else’.” In his warning, published in the latest Law Society Journal, Justice Young cited “a case in April where a son had claimed against his father’s $240,000 estate. The estate paid the son’s legal costs – $40,000 – as well as its own $16,000 bill. The son ended up receiving a $60,000 legacy from the estate.” Also arousing public ire of late have been a case last week in which “a woman was awarded a $60,000 legacy from her father’s $1.5 million estate, with Supreme Court Master John McLaughlin commenting that the costs were ‘excessive’: $74,500 for the woman and $130,000 for the estate”, as well as the case reported in this space Feb. 18-19, 2002, in which lawyers’ fees ate up $112,000 of a $154,000 estate, leaving only around $30,000 for the contending parties. (Leonie Lamont, “‘Sloppy’ lawyers warned their costs may be capped”, Sydney Morning Herald, Jul. 28).
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Latest on the reparations bandwagon: A suit was filed earlier this month in Los Angeles Superior Court on behalf of an estimated 400,000 people of Mexican descent, seeking damages for the “irreparable loss” suffered during deportation campaigns in the 1930s. Representing the plaintiffs, and seeking class action status, are the Mexican American Legal Defense and Educational Fund and the Beverly Hills law firm of Kiesel, Boucher & Larson. (”Lawsuit seeks reparations for 1930s-era expulsion from California”, CNN, Jul. 16). Update Sept. 14: legislature passes bill to facilitate suits.
Alaska: “Jamila Glauber, who was told to leave a city bus for eating a bite-size Snickers bar March 22, 2002, filed suit in Juneau on Monday against Capital Transit, the city and Tad Zurek, the bus driver. Glauber, represented by Anchorage attorney Jay W. Trumble, claims the actions of the defendants caused her severe emotional distress and were based on her race and national origin. As an Arab-American of Yemeni origin, she is protected from such actions under the Alaska Human Rights Act, the suit notes.” (”Woman sues Capital Transit over 2002 incident”, Juneau Empire, Jul. 23).
Our latest new guestblogger arrives tomorrow for a week of postings. And welcome to USA Today readers — we get mentioned today in connection with a story on strange eBay auctions, a specialty of recent guestblogger Dan Lewis’s site WhattheHeck.com (Karen Schubert, “Bazaar goes bizarre” , Jul. 28). For our original eBay item, see Jun. 21-23, 2002.
The Los Angeles Times’s Michael Hiltzik doubts that the cleanup of the Trevor Law Group spells an end to shakedown litigation under California’s Section 17200: “As I write I’m looking at a letter sent two weeks ago by a Bay Area lawyer to a San Jose pool company, offering to settle a potential 17200 claim over a supposedly deceptive newspaper advertisement in exchange for a ‘reasonable attorney’s fee’ of $5,000″ (”Consumer-Protection Law Abused in Legal Shakedown”, Jul. 21). Hiltzik also relates an amusing anecdote about how the Trevor lawyers helped seal their fate: “The group also made the mistake of picking on the wrong victims; thinking that it was suing only ma-and-pa service stations, it named, apparently unwittingly, a couple of repair shops owned by the big tire maker Bridgestone/Firestone North American Tire, which took umbrage and put Sybesma [experienced defense lawyer Edward Sybesma of Costa Mesa's Rutan & Tucker] on the case. ‘How was I supposed to know this was Bridgestone/Firestone?’ Sybesma recalls one of the Trevor lawyers lamenting one day — a line one wouldn’t be surprised to hear during an episode of ‘America’s Dumbest Criminals.’”
The Wall Street Journal’s free OpinionJournal has now posted our editor’s op-ed on section 17200, which appeared in the paper last Tuesday and was linked here in different form last week (see Jul. 22). (Walter Olson, “The Shakedown State”, OpinionJournal.com, Jul. 27.) Reader comments, too. And Baseball Crank (Jul. 27) quotes extensively and informatively from Justice Stephen Breyer’s dissent in the Supreme Court’s recent refusal to hear the 17200 case against shoemaker Nike.
“A Mississippi Supreme Court justice and a wealthy attorney who helped land the state millions in tobacco settlement money were among five people indicted Friday on federal fraud and bribery charges. Biloxi attorney Paul Minor is accused of funneling hundreds of thousands of dollars to Justice Oliver Diaz Jr., Diaz’ former wife, Jennifer, and to two lower court judges. In return, Minor allegedly received favorable treatment for Minor and his clients in cases involving multimillion dollar judgments.” The 16-count indictment also names former Harrison County Judges Wes Teel and John Whitfield. Prominent in the state’s tobacco litigation, Minor is the son of a well known Magnolia State political columnist, Bill Minor. (Jack Elliott Jr., “Justice, Attorney Charged in Mississippi”, AP/Sarasota Herald Tribune, Jul. 25; Jerry Mitchell, “Justice, 4 others indicted”, Jackson Clarion Ledger, Jul. 26; Jerry Mitchell, “Charges may alter opinions of Miss. judiciary”, Jackson Clarion Ledger, Jul. 27; Jack Elliott Jr., “Indictment of justice and lawyer come amid debate between Mississippi business, trial lawyers”, AP/New Orleans Times Picayune, Jul. 27). More: Beth Musgrave, “‘Go see Paul Minor’”, Biloxi Sun Herald, May 18. For our earlier coverage, see: Oct. 9-10 and Oct. 11-13, 2002; May 7 and Jul. 24, 2003.
In April the Washington Supreme Court issued a six-month suspension from practice to Douglas Schafer, the Tacoma-based attorney who had divulged client confidences in the course of a successful effort to expose a corrupt judge (see Jan. 19, 2000)(Gary Young, “Attorney’s suspension sparks debate”, National Law Journal, Apr. 28; Adam Liptak, “Lawyer Whose Disclosure of Confidence Brought Down a Judge Is Punished”, New York Times/Council of Public Relations Firms, Apr. 20; Schafer’s website)
