Chronicling the high cost of our legal system
From the monthly archives:
Reasonable foreseeability? “A woman has won nearly $240,000 compensation from RailCorp after a judge ruled she was raped because she had broken her ankle weeks earlier at a Sydney railway station. RailCorp was found responsible for the woman’s rape at a private home, because she could not escape with her leg in plaster, and for her subsequent depression.” (Geesche Jacobsen, “A fall, a rape – and $240,000″, Sydney Morning Herald, Apr. 26).
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Tim Sandefur has an amusing account of an arbitrator’s appalling decision to reinstate a tollbooth collector fired for shooting paintball guns in moving highway traffic. The arbitrator’s decision is wrong, but I’ll disagree with Tim and agree with the New Jersey Supreme Court’s decision that it’s not the court’s place to substitute their judgment for that of the arbitrator’s. The benefit of having arbitration is the lower cost of ensuring finality in decisions and avoiding litigation, and permitting appeals destroys that benefit if matters are simply going to be relitigated in court. If an arbitrator is consistently more wildly wrong than a litigation system (a questionable proposition) such that those lower costs are not justified by the higher error rate the remedy is to negotiate for different dispute resolution procedures in future union contracts. And that goes even when the arbitrator mistakenly rules in favor of the plaintiff.
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It made news a few weeks ago when attorney Willie Gary (many entries) requested that a court award fees of $11,000 per hour for his work on a lawsuit against Motorola; the $24 million total demand may have been outrageous, but at least it was part of a $10 billion lawsuit.
But what about a lawyer who requests $150,000 in fees on a case that was only worth $11,000? A magistrate judge actually granted the award, but fortunately the federal judge overturned that insanity, awarding just $4,900 in fees:
Zloch said the case, which lasted nearly three years and produced thousands of pages of court files, should have been resolved with 19 hours of legal work. Legal experts not involved in the case say a six-figure attorney fee request in a simple overtime case is extraordinary.In 2004, Trina Carlson, formerly of Weston, Fla., sued her former employer, Dr. Marc Bosem, a Weston ophthalmologist, for $11,000 in unpaid overtime wages. Bosem, who acknowledged he owed Carlson overtime pay, was represented by Plantation, Fla., lawyer Jeffrey Norkin. The case was settled in January 2006 for $11,000.
On the attorney fee request, Zloch this month overturned U.S. Magistrate Judge Lurana Snow’s award of $142,000 in fees for 455 hours of work at $300 an hour, plus paralegal fees and costs.
The actual saga would be humorous if it weren’t so wasteful; it involves allegations of name calling, bad faith, assaults on court reporters (!), claims of destruction of evidence, and ethics charges.
Readers of Overlawyered will not be surprised to find out that this practice is not unusual.
For several years, defense attorneys have complained that plaintiffs attorneys are filing overtime claims under the federal Fair Labor Standards Act for small dollar amounts that require little litigation, then claiming attorney fees in the tens of thousands of dollars. They complain these cases are clogging the federal courts and angering judges.In 2003, Judge Federico A. Moreno rejected attorney Donald Jaret’s request for $16,000 in fees on a $315 claim that was settled weeks after the claim was filed. In his order, Moreno wrote that the claim “shocks the conscience of the court. … This strategy of ‘shaking down’ defendants with nightmarishly expensive litigation in pursuit of attorney fees must not be rewarded.”
If only more judges felt that way.
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Over at That Other Website, there’s a link to a Findlaw column by Anthony Sebok, entitled, “Could Virginia Tech Be Held Liable for Cho Seung Hui’s Shootings, If An Investigation Were to Reveal It Had Been Negligent?” The subtitle of the column, which tells you all you need to know, is “The Unfortunate Answer.”
To be fair, Sebok is a law professor, and the question posed is a legitimate academic one: what, if any, legal liability does Virginia Tech face? And also to be fair, Sebok speaks the right words about how Cho bears the primary blame. But at the same time, the article illustrates that the trial lawyers of the sort Overlawyered complains about every day are not revolutionaries; they’re just doing what they’ve been taught in law school. Namely, find a legal theory under which one can blame third parties.
Sebok is careful not to declare the university liable, but at the same time, he doesn’t think there’s anything farfetched about considering that it might be. He doesn’t think there’s anything wrong with trying to assign blame to the school for the acts of a criminal. Ultimately, he’s disappointed because Virginia is “notoriously pro-defendant,” and so even if the victims’ families can blame the state, the “final indignity” is that they could likely “only” win a maximum of $100,000. For the actions of a criminal.
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This is an old story, but I thought it mildly topical enough to be worth mentioning: CBS aired a television movie last Sunday night about a Tampa man named Bruce Murakami, whose wife and daughter were killed in a 1998 car accident after being hit by a drag-racing teenager. Murakami wanted revenge on the teenager, but after a multi-year campaign to have the teenager charged with a crime, Murakami had a last minute change of heart and forgave the kid. Instead of having the kid sent to jail, he started working with the kid to convince other teenagers to drive safely. The point of the story was how forgiveness was so noble and wonderful, and how it saved Murakami life. (Hey, it was a “Hallmark Hall of Fame” movie.)
An inspiring story, I suppose. The movie forgot to mention, though, that forgiveness apparently only extended to people without deep pockets; Murakami may have let the kid walk free, but that didn’t prevent him from suing Dollar Rent-A-Car because the company had rented out — to the kid’s parents — the car that the kid was driving when he killed Murakami’s wife and daughter. (“Dollar settled the case for an undisclosed amount.”)
I have an op-ed in today’s Wall Street Journal on misguided attempts by trial lawyers and Congress to regulate mortgage lending through expanded liability.
Update: Free version available at AEI. And additional back-and-forth at Point of Law and in the Marginal Revolution comments.
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If you believe you are called to don unique garb and headgear to reflect your evolving spiritual quest, you may find it harder to keep your job at the nation’s best-known mass-market retailer. “Wal-Mart’s attorney declined comment, but in legal pleadings the company said the Universal Belief System isn’t a bona fide religion and that it fired [Daniel A.] Lorenz because of provocations he initiated under the guise of protected religious expression. … Lorenz was seen outside work in secular clothing, Wal-Mart’s pleadings said.” A federal district judge granted the store a summary judgment, which Lorenz is appealing. (Zeke MacCormack, “Plaintiff in headdress doesn’t win over judge”, San Antonio Express-News, Apr. 9; “Wal-Mart employee’s attire gets him fired”, Mar. 8, 2004).
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“Hedge funds and institutional investors are financing the latest wave of IP lawsuits. … Says Daniel McCurdy, a patent consultant in Warren, N.J., ‘They are the arms merchants in the new patent wars.’” (Nathan Vardi, Forbes, May 7). For more on champerty, a former offense at common law which consisted of financing the prosecution of a lawsuit in exchange for a share of the proceeds, follow this link.
The Milwaukee Journal-Sentinel explains that it’s discontinuing the practice because stepping onto porches and placing the paper behind the screen is just too dangerous, at least legally:
…A more critical reason for the new delivery policy is to insure distributor safety and to protect our subscribers from liability issues. Should an Independent News Distributor become injured while delivering on your property, you, as the homeowner are legally liable for damages. One of the major reasons Journal Sentinel is moving to doorstep delivery is to avoid this situation for both our customers and our distributors. …Sincerely,
Sheila Davidson
[Vice President/Circulation]
(Romenesko, Apr. 23).
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By recognizing its own limitations, a judicial system can assist in welcoming in the Spring:
The traditional English village fete received the backing of senior judges [last month] after they threw out a £150,000 damages claim made by a woman who broke her leg in a hole left by a maypole.The Court of Appeal heard that villagers must be allowed to uphold their centuries-old celebrations without worrying that they will be sued if accidents happen.
Lord Justice Scott Baker said: “If the courts were to set a higher standard of care than what is reasonable, the consequences would quickly be felt.
“There would be no fetes, no maypole dancing and no activities that have come to be a part of the English village green for fear of what might go wrong.”
(Martin Beckford, ” Legal victory for village fetes and maypoles”, Daily Telegraph, Mar. 2).
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More things you really shouldn’t do if you’re a lawyer:
Curious passage in a Law.com profile of federal prosecutor Michael Wang:
“Mike is just different,” said an assistant U.S. Attorney who has known him for years. “If anything, he tends toward the rabid. I like him.”An admiring defense lawyer concurred: “He’s an animal.”
(Justin Scheck, “Corporate Crime Prosecutor Plays Hard”, The Recorder, Apr. 13).
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“…unless you want to be a lawyer.”
reason: That would thin the herd pretty quickly, wouldn’t it?
Rauch: Yeah, it sure would.
– Jonathan Rauch, interviewed by Nick Gillespie in the new Reason (“The Radical Incrementalist”, Apr. 20).
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My new column in the Times (U.K.) is on the many costs of HIPAA, the federal law which even now prevents institutions from releasing the Virginia Tech psychopath’s health records (privacy rights extend after death) and played a notable role (along with the Buckley Amendment/FERPA) in restricting the chances for relevant actors to compare notes on his symptoms of madness before it was too late (Walter Olson, “Could less rigid privacy laws have prevented the Virginia tragedy?”, Apr. 20).
More: Dr. Wes has some additional HIPAA thoughts, as does Jeff Drummond at HIPAA Blog.
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That didn’t take long: according to Prof. Childs in a post yesterday, at least one legal advertiser has bought Google AdSense words in quest of victim families. Those who click on the ad get redirected to personalinjuryattorney.com.
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