Apparently ending the most recent watch-what-you-say-about-lawyers episode (see Jun. 9, Jul. 12): “Two groups that have protested the Madison County legal system will not seek sanctions against a Wood River law firm that subpoenaed them to give information about their members and finances, the groups’ lawyer said Monday. The Illinois Civil Justice League and the U.S. Chamber of Commerce dropped their request for sanctions against the Lakin Law Firm after deciding they had already made their point, said their lawyer, Gordon Broom.” (Trisha L. Howard, “Seekers of tort reform drop action against critic”, St. Louis Post-Dispatch, Jul. 21)(more watch-what-you-say-about-lawyers episodes).
From the monthly archives:
July 2003
“A federal jury has ordered a casino to pay $875,000 to a woman who was banished after trying to play a nickel token she found at an unattended slot machine.” Estella Romanski, 74, of Troy, Mich., said she was held by security officers against her will at the MotorCity Casino in Detroit after she saw a nickel token laying in the tray of an unattended machine and played it. “[W]hat is called slot walking, the practice of picking up tokens from unattended slot machines … is discouraged or prohibited by many casinos, including those in Detroit, though a rule against it is generally not posted.” Romanski “said they also confiscated her $9 meal ticket as well as the nickel token and would not let her rejoin her group.” (AP/Casino City Times, Jul. 23; Las Vegas Sun)(& welcome MyShingle.com readers). Update Feb. 28, 2007: Supreme Court denies casino’s certiorari petition.
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New Mexico: “A group of firefighters and rescue workers who responded to a pipeline explosion near Carlsbad that killed 12 people three years ago have filed a lawsuit against El Paso Natural Gas Company.” The lawsuit, filed on behalf of 24 firefighters and rescue workers, “says the plaintiffs suffered physical and emotional pain and were subjected to horrific traumatizing circumstances while fighting the fire and trying to help the victims.” (“Firefighters, Rescue Workers Sue El Paso Natural Gas”, KRQE.com, Jul. 1). Reader Daniel White comments: “While it is true that the subject pipeline accident was indeed horrific and killed several members of a family camping nearby, isn’t it expected that firefighters and rescue workers will observe horrible things in their day-to-day jobs? Don’t such things ‘come with the territory’ so to speak? … Firefighters, law enforcement officers, EMTs and other rescue professionals chose to pursue such careers knowing full well that their jobs involve routinely responding to tragedy.” The mayor of Carlsbad apparently agrees (“Mayor Opposes Pipeline Explosion Lawsuit”, KRQE.com, Jul. 21). Update Apr. 1, 2004: judge dismisses case.
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“A federal grand jury investigating state trial lawyers, judges and a Supreme Court justice could consider indictments as early as this week.” (Jerry Mitchell, “Justice investigation may end this week”, Jackson Clarion Ledger, Jul. 23). And the Mississippi Supreme Court has issued a new rule providing “that in multi-judge districts and courts, civil cases shall be assigned immediately by a random method when the complaint is filed,” so that no one would know in advance who the judge was. “The problem is a few members of the bar are trying to manipulate the system to get the judge that they want,” said Chief Justice Edwin L. Pittman. (“Judge selection process revised”, AP/Jackson Clarion Ledger, May 31).
From Bleak House, ch. 1: “The little plaintiff or defendant who was promised a new rocking-horse when Jarndyce and Jarndyce should be settled has grown up, possessed himself of a real horse, and trotted away into the other world. Fair wards of court have faded into mothers and grandmothers; a long procession of Chancellors has come in and gone out; the legion of bills in the suit have been transformed into mere bills of mortality; there are not three Jarndyces left upon the earth perhaps since old Tom Jarndyce in despair blew his brains out at a coffee-house in Chancery Lane; but Jarndyce and Jarndyce still drags its dreary length before the court, perennially hopeless.” And now from Louisiana comes word that the parish of East Baton Rouge is proposing to settle a school desegregation lawsuit that has dragged on for 47 years. (Charles Lussier, “School Board OKs desegregation pact”, Baton Rouge Advocate, Jun. 26).
“In recent months the satellite TV giant has filed nearly 9,000 federal lawsuits against people who’ve purchased signal piracy devices. But some of those devices have legitimate uses”. “They’re catching a lot of dolphins in that tuna net” says one lawyer who has defended many targets of DirecTV demand letters and suits (Kevin Poulsen, The Register (UK), Jul. 17; Slashdot thread; Security Focus discussion).
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“Medical-malpractice insurance underwriters in Pennsylvania lost $18 million last year, according to a new analysis by the state Department of Insurance that appears to underscore industry claims that Pennsylvania’s tort system is driving insurers out of the state. … Medical-malpractice insurance underwriters in Pennsylvania paid out $345.4 million in claims last year, about 31 percent less than the $499 million that insurers received in premiums from doctors, the department said. But while insurers earned $46.4 million in investment income, they also paid $136.9 million in legal costs and $81.1 million for taxes and other operating expenses.” The actual loss figure attributable to 2002 may come in a good bit higher than $18 million when all accounts finally come to reckoning: “The insurers also put away $209.4 million in reserves for future claims.” (Marc Levy, “State analysis shows Pa. malpractice insurers lost $18M last year”, AP/Doylestown (Pa.) Intelligencer, Jul. 15).
More: reader James Ingram writes, “So what do these numbers show? Insurers collected $499 mm in premiums and paid $345 mm in claims and $137 mm in legal costs. If we assume that 1/3 of the amount paid in claims went to plaintiffs’ lawyers (actually a pretty conservative figure, many charge more) that amounts to another $115 mm going to legal costs. Add $137 mm and $115 mm and you have $252 mm of the $499 mm that doctors, hospitals and other providers paid in premiums (more than half) going to legal expense while a maximum of $230 mm (46%) went to claimants. Great system, if you are a lawyer!”
Our editor’s tentatively scheduled appearance tonight on National Public Radio has been called off.
From Britain’s Daily Telegraph: “Trapeze artists with one of the world’s most famous circuses have been told to start wearing hard hats to comply with new EU safety rules. Jugglers, tightrope walkers and other acrobats with the Moscow State Circus, which is currently touring Britain, have also been instructed to don safety head wear because of European regulations covering workers employed at heights greater than the average stepladder.” Insurers apparently cited the new rules as reason to exclude coverage of future injuries incurred by helmetless performers (who went ahead yesterday and decided to perform without helmets anyway). One obvious question, which we assume the follow-up reporting will address, was whether the insurers were reasonably interpreting the EU directives. (David Sapsted, “Circus acts told to wear hard hats under new EU law”, Daily Telegraph (UK), Jul. 23).
Crime does pay, but not as richly: A judge has reduced from $51 million to $9.75 million a Bronx jury’s award to Darryl Barnes, who was paralyzed in a 1988 shootout with off-duty police officer Franz Jerome. Jerome gave chase on the night of Aug. 22 after spotting Barnes carrying an illegal Tec-9 semiautomatic and a shootout ensued: while Barnes (who pleaded guilty to assault on a police officer) denied that he fired his gun at Jerome, two Tec-9 shell casings were found at the scene and ballistics experts confirmed that they were from Barnes’s gun. The officer’s third shot entered Barnes’s back from close range. A jury in 1998 awarded Barnes $76.4 million, a record for a police-brutality case, but its award was later thrown out and a retrial ordered when an appeals court ruled that the city should have been allowed to introduce evidence that Barnes was a member of the Five Percenters gang, which preaches hatred of police and advises its members to shoot rather than submit to arrest. The second jury, this March, deliberated for less than three hours before ordering the $51 million award, payable by city taxpayers. (Stephanie Gaskell, “$51M Award Cut to $9.75 M”, New York Post, Jul. 10; Jeffrey Toobin, “Pay Day”, The New Yorker, Apr. 21 & 28 (not online); Stephanie Gaskell, “Retrial Jury Awards $51M to Bronx Gunman Shot by Cops”, NYPD News, Mar. 14; VerdictSearch/New York Jury Verdict Reporter, Mar. 13).
Our second guestblogger of the summer has completed his week-long stint, his postings appreciated especially because (in true law-student fashion) he came under the gun from some last-minute obligations that cut into his ability to spend time online. For more of his writing, visit his sites at DLewis.net (sports) and WhattheHeck.com. Look for more guestbloggers in coming weeks, and remember that it’s still not too late to volunteer (preference given to those whose work we already know).
Why is there a secret snickering every time the legal profession poses as heroic champions of the Right to Privacy? In part because of stories like this one: “A New York state trial court has ruled that it is ethically proper for attorneys to advise their clients on how to surreptitiously tape-record their conversations with managers, co-workers and other third parties. … It is the first court ruling on the issue since the American Bar Association reversed its stand in 2001 and issued an ethics opinion that supports an attorney’s right to provide advice on surreptitious taping.” (Steve Seidenberg, National Law Journal, Apr. 28).
Our editor has an op-ed in today’s Journal on the latest developments in California’s “shakedown lawsuit” scandal, in which law firms were discovered to be mass-mailing demand letters holding up small businesses for thousands of dollars apiece under the state’s uniquely liberal “unfair competition law”, otherwise known as Business and Professions Code 17200. In brief, the Democratic leadership of the state legislature in Sacramento is using the scandal as an excuse to push through legislation that, along with a bit of window-dressing reform directed at the more obvious shakedown artists, would actually increase lawyers’ leverage to obtain settlements from defendants under section 17200. (Walter Olson, “The Shakedown State”, Wall Street Journal, Jul. 22). We covered the scandal earlier on Jan. 15-16 and Mar. 3; for more on California’s bounty-hunting Prop 65, follow these links and in particular our post for Nov. 4-5, 2002. More: The Civil Justice Association of California maintains a lot of information on the status of section 17200 legislation, especially here, here and here.
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Deputy U.S. Attorney General Larry D. Thompson professes to believe, at one and the same time, that it is “bedrock” law that incorporated businesses be held to vicarious criminal liability for the acts of their employees and agents, and that the law both does and should set a single standard for individual and business criminality, rather than dealing more severely with business. (“‘Zero Tolerance’ For Corporate Fraud”, Wall Street Journal, Jul. 21). Which raises the question: will Mr. Thompson volunteer to serve jail time personally should one of his household employees commit vehicular manslaughter while on the way to buy him groceries? “Robert Musil” wonders, and so do we (Jun. 21).
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Various cosmetic companies settled a class action suit today. They were accused of price-fixing and collusion, the rank enemies of a competitive market. The companies, by and large, settled — it’s probably cheaper to do that than to litigate, given the chance (however slight) of a jury giving the class a bonanza of a deal. So, what do all the wrong customers get? One (1) item. Enough lipstick to last a few weeks. What do the lawyers get? The AP didn’t mention it, but I’m sure it’s a lot more than a tub of mascara and some blush. Would anything make a class action lawyer blush? (“Settlement could give away $175 million in cosmetics,” AP, Jul. 22). Update Apr. 14, 2004: settlement challenged; May 19: more details; Dec. 3, 2004 and Mar. 14, 2005: judge approves settlement.
Lawyers and judges in Beaumont, Texas are far from pleased to hear their city called a “judicial hellhole” and “the Barbary Coast for class-action litigation.” “Defense lawyer James R. (“Jay”) Old Jr. says the county has unfairly gotten a reputation as a place where ‘the plaintiffs and defense bar work together to combine for the greatest amount of billables for the defense lawyers and the greatest recoveries for the plaintiff’”. Why, sir, the very idea is preposterous! Besides, there’s a silver lining in the city’s reputation as a forum-shopping destination for lawyers around the state and country: “In fairness, it represents to us an industry. It puts a lot of people to work here,” says Jim Rich, who heads the Beaumont Chamber of Commerce. However, things might be changing: recent elections have shifted the three-member appeals court that oversees Beaumont to a 2-1 Republican edge, from 3-0 Democratic. (Terry Maxon, “Beaumont known for torts”, Dallas Morning News, Jul. 20).
Against a backdrop of growing political difficulties for Missouri Governor Robert Holden, “how did Holden’s campaign pile up an impressive $623,245 in contributions? Who are the governor’s backers and why are they opening their wallets? … Reports filed last week show that the biggest identifiable chunks of money the last three months came from two groups: trial lawyers and labor unions.” Holden just vetoed a bill that would have limited damages in lawsuits. Besides giving more than $80,000 to his campaign in the last quarter, lawyers also gave $240,000 to the Missouri Democratic Party. (Virginia Young, “Lawyers, unions give big to Holden war chest”, St. Louis Post-Dispatch, Jul. 21.)
Per a Gallup Poll conducted July 7-9, “nearly 9 in 10 Americans (89%) oppose holding the fast-food industry legally responsible for the diet-related health problems of people who eat that kind of food on a regular basis. Just 9% are in favor. Those who describe themselves as overweight are no more likely than others to blame the fast-food industry for obesity-related health problems, or to favor lawsuits against the industry.” (Lydia Saad, Gallup News Service, Jul. 21). Some opinion pieces: Kathleen Parker, “A ludicrous premise for a lawsuit: Obesity is the food’s fault”, Chicago Tribune, Jul. 16(“It’s hell living in a rich country with too much to eat, isn’t it? … The idea that restaurants are trying to make food taste better by combining sugar or fat to their protein, also known as ‘cooking,’ hardly qualifies as criminal conduct.”; Robert Tracinski, “Reductio ad Totalitarianism”, Ayn Rand Institute, Jun. 26 (quotes our editor)(“The problem with the ‘reductio ad absurdum’ argument, one of my philosophy teachers once warned me, is that your opponent may simply embrace the logical end result of his ideas — no matter how absurd it is. And that’s exactly what is happening now.”); Patti Waldmeir, “In America it takes lawsuits to change lives”, Financial Times, Jul. 21 (“the point is publicity, not liability. … My children have never seen a McDonald’s advert: they know instinctively that fat is good”). Yet more: James Justin Wilson, “Battling the Fat Suits”, National Review Online, Jul. 21; John Stossel, “Give Me a Break!: Food Fight”, ABC News, Jul. 18.
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