Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for January, 2006

Welcome Forbes.com readers

I’m quoted and this site is mentioned by a Daniel Fisher Forbes.com article on the James Frey class action litigation. (“A Million Little Lawsuits Over Frey”, Jan. 30). The article refers to our January 12 post correctly predicting the “inevitable free-riding class action.” We had further coverage Jan. 17, Jan. 25, and Jan. 27. See also this site’s collection of class action posts, as well as that of our sister site, Point of Law, which also has extensive discussion of class actions.

Update: New York Daily News reports two more class actions in New York, including one filed in state court where it will be removed to federal court under the Class Action Fairness Act. One advantage of the Class Action Fairness Act is that, before, a defendant would face multiple suits, and would have to settle eventually, because winning one didn’t prevent another suit from moving forward. Plaintiffs could play “Heads I win, tails don’t count.” Now, all of these suits will be consolidated, and a defendant with a legally meritorious case has a chance of winning a case dispositively in court.

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Turning over the e-mail

Under current civil procedure rules, parties, upon request, and with very few limits, must turn over all relevant documents to the opposing party. In the twenty-first century, that includes e-mail. Failure to turn over enough e-mail can cost a company a billion dollars in de facto sanctions (Dec. 17); turning over too much e-mail can waive the attorney-client privilege. Thus, unless parties can come to an agreement otherwise, teams of attorneys have to review every single e-mail, at great expense.

But in a typical tort action, with an individual plaintiff and one or more corporate defendants, there are asymmetric discovery burdens. An individual plaintiff has no incentive to agree with a corporate defendant to limit the corporate defendant’s burden, because (1) increasing the expense to the corporate defendant increases the likelihood of a nuisance settlement and (2) there’s no telling what stray e-mail might be able to be taken out of context to make a case to a jury unfamiliar with corporate communications that a defendant is worthy of punitive damages. (Numerous plaintiffs have successfully used decades-old back-of-the-napkin sloppy cost-benefit analyses by individual Ford and GM engineers to obtain millions of dollars of punitive damages for entirely different vehicle designs; an e-mail by Kay Anderson, a low-level Wyeth administrator who expressed frustration that her career was mired in dealing with complaints from what she called “fat people scared of a silly little lung problem” cost the company tens of millions, if not more, in fen-phen litigation when plaintiffs tarred the whole company with it.) This Wired story (via Bashman) about Enron e-mail made public provides a good reminder that any e-mail you send or receive at work is likely to end up in the hands of multiple lawyers one day.

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L.A. to rename school after Johnnie Cochran, Jr.

The former Mt. Vernon Middle School will be renamed after its most famous alum, the late attorney best known for employing racial demagoguery to spring client O.J. Simpson. Glad we won’t have to be there for the “character education” classes. (AP/Reuters). A small sampling of our Cochran coverage: Aug. 13-14, 2001, Nov. 8-10, 2002, Aug. 29, 2003, Dec. 6, 2004, Mar. 30, 2005.

Overlawyered-2F.gifUnrelatedly, here’s one more logo designed by the prolific and talented David Thomasson (earlier)(about logo series).

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He’s a doctor, a lawyer, and so much more

The Barnes Firm, formerly Cellino & Barnes, is a powerhouse in the personal-injury business in upstate New York, where it is a ubiquitous advertiser. According to the Buffalo News, it’s built one of the largest caseloads of Vioxx lawsuits in the nation by hawking its star attorney, Brian A. Goldstein, who in television ads

described how he was uniquely qualified to represent Vioxx users. Not only was he a personal injury lawyer, he told viewers, he was a former physician and board-certified surgeon….

The lawsuits accuse the drug’s maker, Merck & Co., with failing to tell patients the whole truth about Vioxx.

Goldstein, though, appears guilty of the same charge about his medical background. Georgia’s Composite State Board of Medical Examiners revoked Goldstein’s license to practice medicine on Jan. 10, 1991.

Goldstein was found guilty of providing Georgia licensing authorities with misleading and incomplete information about his education, according to records obtained by The Buffalo News. The licensing board found that Goldstein:

• Attended college and medical school at the same time in the Dominican Republic.

• Graduated from medical school less than three years after he graduated from high school.

• Received credit for courses he had not taken, had not completed or failed.

• Said he attended Tulane University when he had not, falsified his earlier training and submitted a false letter of recommendation for a residency at the Manhattan Psychiatric Center.

The hearing officer in Georgia not only recommended revocation but also said the decision should be published “as a public reprimand for [Goldstein] for his conduct.”

But none of that information was mentioned in the Vioxx ads, or in Goldstein’s biography on The Barnes Firm Web site.

The Buffalo News investigation includes various defenses of his conduct offered by Goldstein, including the following:

He also said Georgia authorities failed to consider the fact he had received an undergraduate degree from Empire State College.

The News confirmed that degree from the college, which grants degrees based on life experience as well as academic studies. But the degree was granted in 1988, three years after Georgia filed charges against him.

The newspaper asks medical ethicist Arthur Caplan about Goldstein’s “selective use of parts of his medical background to recruit legal clients”. Caplan’s response: “I think it’s sleazy”. (Michael Beebe, “Did Barnes Firm lawyer tell the whole truth?”, Buffalo News, Jan. 22). Carolyn Elefant comments at My Shingle (Jan. 22), and the incident also stirs memories for blogger Gina at Together Again (Jan. 23). The law firm of Cellino & Barnes has figured in these pages before: see Jul. 15, 2005.

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“Exit, pursued by a lawyer”

In his suit against playwright Nancy McClernan and producer Jonathan X. Flagg, director Edward Einhorn claims (inter alia) “that his staging contributions to [the play] ‘Tam Lin’ — contributions that his former collaborators say they excised — constitute a copyrighted work of intellectual property, owned by him, and that the defendants must therefore pay for infringing the copyright.” According to the New York Times, the suit raises wider questions of interest to “the famously collaborative process of theater-making”:

Are directors engaged in anything akin to the kind of authorship protected by copyright laws? If so, what’s to stop them from demanding payment whenever a play they once directed is revived? And what would that mean to the free flow of ideas in an art form that borrows heavily from all available sources?

(Jesse Green, New York Times, Jan. 29). P.S. Lattman has more (Jan. 30) including a link to the play’s website.
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Unrelatedly, the third in our series of proposed logos is one of several sent in by David Thomasson of Washington, D.C., whose many writing and consulting activities include a dynamite series of editorials on litigation reform in the recently launched newspaper, the Washington Examiner.

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Public safety wins a hand against the lawyers

Attorneys recommended against installing defibrillators in casinos for fear that the plaintiffs’ bar would use the safety measure as evidence that casinos had a duty to provide medical attention to patrons and create additional liability on the occasions the defibrillators fail, but executives overruled the lawyers. As a result,

Medical research shows that casino visitors whose hearts suddenly stop survive at higher rates even than people who happen to go into cardiac arrest while visiting a hospital. “The safest place in America to suffer sudden cardiac arrest is a casino,” says Bryan Bledsoe, a George Washington University emergency-medicine doctor and co-author of textbooks for paramedics.

Dozens of lives have been saved, and Nevada and several other states have since passed tort reform providing immunity to businesses that use defibrillators. Never fear, there’s always someone happy to ascribe a sinister motive to corporate behavior: “‘Casinos are just saving gamblers so that these people can return to casinos and lose more money,’ says David Robertson, a board member of the National Coalition Against Legalized Gambling.” (Kevin Helliker, “Beating the Odds”, Wall Street Journal, Jan. 28).

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Teacher always liked girls better

Assisted by his lawyer dad, 17-year-old Doug Anglin, a senior at Milton High School in suburban Boston, has filed a federal civil rights complaint against his school system for, he says, systematically favoring girls and their ways:

Among Anglin’s allegations: Girls face fewer restrictions from teachers, like being able to wander the hallways without passes, and girls are rewarded for abiding by the rules, while boys’ more rebellious ways are punished.

Grading on homework, which sometimes includes points for decorating a notebook, also favor girls, according to Anglin’s complaint, filed last month with the US Department of Education’s Office for Civil Rights.

”The system is designed to the disadvantage of males,” Anglin said. ”From the elementary level, they establish a philosophy that if you sit down, follow orders, and listen to what they say, you’ll do well and get good grades. Men naturally rebel against this.”

(Tracy Jan, “Schoolboy’s bias suit”, Boston Globe, Jan. 26). Although critics such as Christina Hoff Sommers have raised interesting questions about boys’ underperformance in the schools, young Anglin’s lawsuit gets very poor grades from Mike Sierra (Jan. 26):

[The complaint says] boys “naturally rebel.” Could this naturally rebellious behavior have something to do with boys’ special need for supervision in school hallways? Just a thought.

As a way to bolster male achievement (at least on paper), the Anglins recommend that we give out academic credit for playing sports and grade students on a pass/fail basis, measures that are unlikely to improve the education of any student. As far as I can tell, their only legitimate complaint concerns one teacher who gives extra points to students who decorate their writing assignments, a practice that is certainly suspect and academically insubstantial, but hardly worth clogging the courts.

BlawgRevOverlawyeredLogo.jpgUnrelatedly, here’s a suggested Overlawyered logo (more) devised by the anonymous coordinator of “Blawg Review”, who sets it alongside some very kind words about our linking habits. All very jagged and Barbara Kruger-esque.

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Miller v. Lockheed Martin Corp.

Michael Miller tore his meniscus while on the job as a security guard. He was restricted from climbing, running, walking on uneven ground, twisting, turning and prolonged standing, and thus was laid off because he couldn’t arrest people or respond to emergencies. A jury awarded him $1.03 million for the indignity, accepting Miller’s argument that Lockheed should have accommodated his injury rather than leave him to workers’ comp. (Miller v. Lockheed Martin Corp., Los Angeles County, Oct. 12, 2005 (via Verdict Search)).

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Readers come through with logos

Once again we have reason to be grateful to our readers, since about a dozen of you responded generously to our request last week for an Overlawyered logo measuring 130 pixels wide by 150 pixels high, for use by a large media organization which is thinking of sending visitors our way. There were lots of nicely executed ideas, and any best-of selection inevitably depends in part on personal taste, but we’re going to reprint four of our favorites alongside this and forthcoming posts. Webmasters alert: if you’re linking to Overlawyered either as a sidebar permalink or on a one-off basis, these logos would make a nifty graphic link, don’t you think? LiseDykesOverlawyeredLogo2.gif

The first logo of the four, then, was submitted by freelance graphic artist Lise Holliker Dykes of Crofton, Md.

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Mom locks kid in car, sues firemen and police

Guita Sazan Silverstein accidentally locked her toddler son in her car on a hot day. A recording of her 911 to a Stamford, Connecticut, dispatcher shows her arguing against breaking the window of the Audi to rescue her son, preferring that police “watch” the boy while she runs over a mile home for a second key. (Silverstein’s explanation is that she feared shattered glass would injure her child.) The window was broken, the boy was rescued, and Silverstein was arrested for child endangerment (allegedly when she tried to leave the scene against police orders while the rescue was pending), and now she wants to sue the city’s police and fire department over the arrest and resulting publicity. “Her attorney, Matthew Maddox said Silverstein should not have been arrested after the July 25 incident. Maddox said police and fire officials should take the blame for any delay or difficulties extracting the boy.” (Tobin A. Coleman, “Lawyer: Officials to blame for baby in car incident”, Stamford Advocate, Jan. 24; AP/Boston Globe, Jan. 24).

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