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It’s not a new idea for reform — I suggested it as my contribution to a book fifteen years ago, it had been kicked around for decades already at that point, England has done it, and we’ve discussed it here. But the route of making progress, as befits our age of anti-discrimination, has been the piecemeal extension of so-called Batson challenges in which it is argued that lawyers used their peremptories to exclude a protected demographic group. The editorialists of the L.A. Times discuss the latest, a Ninth Circuit ruling extending the list of forbidden categories to include sexual orientation.


I’m on record as saying I wouldn’t mind if they were abolished entirely, although the idea floated by Iowa lawprof in Nathan Koppel’s WSJ article yesterday, of limiting them to three per side, seems like a plausible compromise. (A further possible refinement: excusing more juror prospects if both sides agree in wanting them off the case).

Most of the lawyers who are blogging in response to the Koppel article, however, take a position sharply different from mine: Patrick and Ken at Popehat, Scott Greenfield, Mark Bennett (and further). (More: WSJ law blog.) Deadline pressure doesn’t permit me to join in, but anyone interested in the issue will want to follow the discussion. Earlier mentions on this website are here, including a discussion of England’s near-abolition of the practice in 1989.

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The Colorado Supreme Court, wisely resisting a national campaign of school funding litigation, has turned down a lawsuit arguing that the state is obliged under its constitution to step up school spending. [Denver Post, KDVR, opinion in State v. Lobato]

I’ve got a post up at Cato at Liberty about the Colorado decision, noting that although school finance litigators make a lot of noise about educational quality, they are actually on a mission of “control —specifically, transferring control over spending from voters and their representatives to litigators whose loyalty is to a mix of ideologues and interest groups sharing a wish for higher spending.” I quote from a section on school finance litigation that I wound up cutting from my book Schools for Misrule about the enormous impact such suits have had in other states:

Vast sums have been redistributed as a result. Lawmakers in Kentucky enacted more than a billion dollars in tax hikes. New Jersey adopted its first income tax. Kansas lawmakers levied an additional $755 million in taxes after the state’s high court in peremptory fashion ordered them to double their spending on schools.

The results have been at best mixed: while some states to come under court order have improved their educational performance, many others have stagnated or fallen into new crisis. Colorado is fortunate not to join their ranks. (& reprint: Complete Colorado)

P.S. From a Colorado Springs Gazette report, Jul. 31, 2011:

“Putting more money into a broken system won’t get a better results. There are improvements that could be made without money,” says Deputy Attorney General Geoffrey Blue. …

He points to a Cato Institute study that showed spending on education across the country has skyrocketed but test scores didn’t improve.

“That would mean that potentially every cent of the state budget would be shifted over to K-12 education,” says Blue, who heads the office’s legal policy and government affairs.


Wow. Del. Emmett Burns (D-Baltimore County), an opponent of same-sex marriage, fired off a letter to the owner [PDF] of the Baltimore Ravens on legislative stationery demanding that he silence Brendon Ayanbadejo, an outspoken marriage advocate. Pretty much every conservative commentator in America (properly) denounced the Boston mayor and Chicago alderman for menacing Chick-Fil-A. I hope some of them will speak up against this abuse of government office as well. [NBC Sports Pro Football Talk]

More, Eugene Volokh finds it “a pretty inappropriate thing for a legislator, speaking in a way that stresses his role as legislator, to say to a private employer. There is no express threat of retaliation here, but such letters to private businesspeople — who often have to deal with legislature on various regulatory issues — tend to carry something of an implied threat, especially when they stress the author’s legislative position.” Note also that what Burns is “requesting” in his letter is accompanied by a peremptory demand for an “immediate response.” And update: following an outcry in which the public overwhelmingly took the player’s side, Del. Burns has backed down.


Update: Branham v. Ford

by Ted Frank on August 19, 2010

In 2006, I wrote:

In May 2001, Cheryl Jane Hale was driving four children to a sleepover in her 1987 Ford Bronco. She didn’t bother to have the children wear their seat belts, so, when she took her eyes off the road to argue with the backseat passengers, and thus drove off the road and flipped the car, 12-year-old Jesse Branham was thrown from the car and suffered brain damage. A jury in Hampton County, South Carolina (the second jury to be impaneled—the first one was dismissed in a mistrial when it was discovered after two weeks of trial that five of the jurors were former clients of Branham’s lawyers) decided that this was only 45% Hale’s fault, held Ford 55% responsible, which puts Ford entirely on the hook for $31 million in damages.

On Monday, the South Carolina Supreme Court reversed because of prejudicial closing arguments that relied heavily on inadmissible evidence. More importantly for lawyers practicing in South Carolina, the Court adopted “the risk-utility test with its requirement of showing a feasible alternative design.”

How bad of a judicial hellhole is Hampton County? Though Hale was a co-defendant, she cooperated with the plaintiffs throughout the trial in their case against Ford, even sitting at the plaintiffs’ table; but because the judge classified Hale as a co-defendant, it meant that Hale got half of the peremptory challenges of the “defense.” More from Comer; no press coverage that I’ve seen yet. (cross-posted from Point of Law)


April 7 roundup

by Walter Olson on April 7, 2009

  • Wisconsin lawyer pressing bill to allow punitive damages against home resellers over claimed defects [Wisconsin State Journal] More: Dad29.
  • Longer than her will? NY Times posts ten-page jury questionnaire in Brooke Astor inheritance case ["City Room"] “Supreme Court: No Constitutional Right to Peremptory Challenge” [Anne Reed]
  • Georgia’s sex offender law, like Illinois’s, covers persons who never committed a sex crime [Balko]
  • “The lawsuits over TVA’s coal ash spill have come from all over Roane County – except the spots closest to home.” [Knoxville News]
  • Bootleg soap: residents smuggle detergents after enactment of Spokane phosphate ban [AP/Yahoo]
  • UK: Elderly Hindu man in religious-accommodation bid for approval of open-air funeral pyre [Telegraph]
  • No DUI, no one hurt, but harsh consequences anyway when Connecticut 18 year old is caught buying six-pack of beer [Fountain]
  • Only one or two not covered previously at this site ["12 Most Ridiculous Lawsuits", Oddee]

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October 27 roundup

by Walter Olson on October 27, 2008

  • NYC judge tosses injury suit against Lawyers Athletic League filed by a player on Milberg’s team [NYLJ]
  • Kentucky fen-phen lawyers Gallion and Cunningham disbarred [Lexington Herald-Leader]
  • Worker’s comp doc claims he noticed abnormal lab result and told patient to check with his primary doc. Patient didn’t and harm ensued. Malpractice? [CalLaw Legal Pad, KevinMD, Happy Hospitalist]
  • Federalist Society publishes text of Judge Dennis Jacobs’s speech on pro bono, but Chemerinsky digs in rather than apologize [PoL]
  • Are HIPAA privacy rules suspended during emergencies? No, and what lovely situations that’s likely to cause [HIPAA blog, more]
  • One of the more unusual personal injury lawyer websites is “like a touchy-feely hybrid of Myst and The Office” [Above the Law]
  • Gold-collar criminal defense work? McAfee decides $12 million too rich a sum for defending CFO Prabhat Goyal [Bennett & Bennett, Greenfield]
  • Sounds promising: “Texas Supreme Court decision could end peremptory strikes in jury selection” [SE Texas Record]

Twitter for 2008-09-19

by Walter Olson on September 19, 2008

January 4 roundup

by Walter Olson on January 4, 2008

  • Housekeeping service in Florida proclaims, “We Speak English”. So will they get sued? [Smerconish/Phila. Daily News]
  • Update: Dad who long ago walked out on his family won’t get chunk of estranged son’s $2.9 million 9/11 fund benefit [NY Post (link fixed now); earlier]
  • Did Illinois state’s attorneys advise Marine sergeant complaining of car vandalism that there wasn’t much point trying to recover from the suspected offender since he was a lawyer? [Blackfive via Zincavage and many readers; Kass/Tribune] And what kind of trouble might the lawyer be in if he suggested slipping the repair costs along to an insurer? [Patterico commenters, Goldberg/NRO Corner correspondent] More: Bainbridge.
  • Not long after American Lawyer pronounces the demise of securities class actions, we learn they may be back on a cyclical upswing [August TAL; new Stanford Clearinghouse]
  • If rising tide of outrage leads to abolition of peremptory challenges, many lawyers won’t have anyone to blame but themselves [Reed]
  • Brooklyn judge’s presenting of box of candy to plaintiff among grounds for reversal of $14 million brain-damaged infant verdict [NYLJ]
  • Yet more health privacy madness: “HIPAA is adversely affecting our ability to conduct biomedical research” [Reuters on JAMA study via Kevin MD; relatedly, Karvounis/HealthBeat]
  • People kept tearing down no-swimming signs at much-used park in Bellingham, Wash., and you know what’s going to happen next without our having to tell you [AP/Seattle Times]
  • Two Illinois judges in drunk-driving accident that broke other driver’s leg draw mere reprimand with “no consequences other than public embarrassment” [Post-Dispatch]
  • Suit against Avvo lawyer-rating suit dismissed on First Amendment grounds [Seattle Times, Post-Intelligencer; earlier]
  • Saves her friend’s life, then sues her [seven years ago on Overlawyered]


June 14 roundup

by Walter Olson on June 14, 2007

  • Encouraging kids’ adoption is a great thing to do, but there are right and wrong ways of going about it [U.K. Daily Mail]

  • Defensive medical testing: “Every day I work as a doctor, I must choose between committing malpractice and committing insurance fraud.” [Dr. Paula Hartzell in Medical Economics]

  • After serving 2+ years for consensual sex with fellow teen, Genarlow Wilson (Feb. 8, Mar. 6) may walk free, or maybe not [CNN; views of some Andrew Sullivan readers]

  • “We need to eliminate nuisance lawsuits through ‘loser-pays’ provisions.” [candidate Giuliani @ NRO]

  • Boston Herald (May 11, etc.) pays $3.4 million to local judge to settle libel verdict [Globe]

  • Blind squirrel finds acorn dept.: American Prospect weblog promotes a good idea, abolishing peremptory challenges [Tapped; more]

  • Disciplinary hearing begins against Duke DA Nifong []; you’d think lacrosse player’s out-of-town alibi might have raised a red flag [K. C. Johnson via Cernovich]

  • Another flap, this time from Oklahoma, about a doc who vows to turn away malpractice-suit advocates as patients [Enid News & Eagle via KevinMD]

  • No shock, Sherlock: mud-slinging, money-flinging found to be big problems in state high court races [AP]

  • In that curious saga of Madison County, Ill.’s oft-suing Peach family (earlier posts here and here) Armettia Peach has settled her leaky-roof case against Granite City [M. C. Record]

  • New York “plastic surgery addict” loses case claiming doctor should have counseled her against going under the knife so often [six years ago on Overlawyered]


The Washington Times does some reporting on John Edwards’s trial practice in North Carolina. (“Edwards’ malpractice suits leave bitter taste”, Aug. 16). Reporter Charles Hurt talks to local doctors about Edwards’ cerebral palsy cases and also relates the following story about the role of jury selection in one of the future senator’s prominent cases:

“In 1991 [in Wake County], he won $2.2 million for the estate of a woman who hanged herself in a hospital after being removed from suicide watch. … During jury selection, Mr. Edwards asked potential jurors whether they could hold a doctor responsible for the suicide of their patients.

“I got a lot of speeches from potential jurors who said they did not understand how that doctor could be responsible,” Mr. Edwards recalled in an interview shortly after the trial. Those persons were excluded from the jury.

The article doesn’t say whether Mr. Edwards had to use up his peremptory challenges against the skeptical jurors or was able to get them purged for cause. Either way, it’s a reminder of one way the political process is both more open to diversity and more responsive to public opinion than the trial process: you can’t eject citizens from the voter pool just for holding the wrong sorts of views.

May 9-11 – Senate panel nixes tobacco-fee clawback. “Senators working on a tax bill Thursday stripped a proposal that would have forced attorneys in a landmark tobacco lawsuit to give $9 billion in fees back to the states they represented.” Sen. Jon Kyl, R-Ariz., had proposed requiring plaintiff’s lawyers in the tobacco affair to return to their state-government clients fees in excess of $2,500/hour or thereabouts. “But Democrats, led by Sen. John Breaux, D-La., and joined by Republican Sens. Orrin Hatch of Utah and Gordon Smith of Oregon, won a 12-8 vote to strike the language. Sen. John Kerry, D-Mass., said that if Congress can change the terms of the tobacco settlement, there is nothing to stop it from telling every business in America to change the way they pay their executives.” It’s almost as if Sen. Kerry doesn’t realize that 1) a host of federal laws already on the books, notably tax provisions, do purposely shape the way businesses compensate their executives; 2) lawyers, unlike business execs, practice under professional ethical codes which are supposed to bar them specifically from charging excessive fees; 3) lawyers who claim to represent the government (and thus the public) come under some of the most stringent ethical constraints of all. (“Senate Democrats Strike Proposal to Limit Fees for Lawyers in Tobacco Case”, AP/Tampa Bay Online, May 8; Stephen Moore, “Targeting lawyers who got rich off tobacco trials”, Scripps Howard/Nando Times, May 2) (& welcome readers). (DURABLE LINK)

May 9-11 – Update: “U.S. is sued for deaths of crossers”. “The families of 14 illegal entrants who died crossing the desert east of Yuma in May 2001 have filed a $42 million lawsuit against the U.S. Department of the Interior.” As we reported a year ago when the cases were at an earlier procedural stage, “The suit charges the government with failing to authorize the placement of water stations intended for use by unlawful visitors, though it knew smugglers of immigrants were active in the desert area.” (Michael Marizco, Arizona Daily Star (Tucson), May 8). (DURABLE LINK)

May 8 – “No Crueler Tyrannies”. Dorothy Rabinowitz’s long-awaited book on the mass-child-abuse accusation frenzy of the 1980s and 1990s is now available at this link. It collects and extends the widely acclaimed Wall Street Journal reporting that prepared the way for the author’s 2001 Pulitzer Prize (review by Carol Iannone, Commentary, May; C-SPAN “Booknotes” interview with Brian Lamb, May 4; Suzanne Fields, “A cruel tyranny at home”, syndicated/TownHall, Apr. 3; other reviews at Amazon site). (DURABLE LINK)

May 8 – More on Edwards’ law-firm donations. Washington periodical The Hill digs deeper into the curiously uniform $2,000 contributions Sen. John Edwards’ presidential campaign got from so many receptionists, paralegals and other low-level staffers at plaintiff’s law firms. The $2,000 donors include many employees who had not given to candidates or even voted in the past, and others who are listed on the voting rolls as Republicans. Many spouses and relatives of the staffers likewise contributed the maximum. Some of the munificent staffers have recently gone through the kind of personal financial reverses — bankruptcy filings, for example — which would not seem to correlate in the natural order of things with having a large available checkbook for political donations. “In many instances, all the checks from a given firm arrived on the same day — from partners, attorneys, and other support staff.” Employees denied that their law-firm employers had signaled any willingness to reimburse the donations, which would constitute a violation of federal law. (Sam Dealey, “Donations to Sen. Edwards questioned”, The Hill, May 7). (DURABLE LINK)

May 7 – Mississippi investigation heats up. Per the Times of South Mississippi (Hattiesburg), the “net may be widening” in the FBI’s previously reported investigation of improper ties between Mississippi judges and well-known trial lawyers (see Oct. 9-10 and 11-13, 2002). “Sources said this week as many as 25 indictments could be issued …While reports of the investigation have focused on the Gulf Coast, sources said the probe now includes campaign contributions from trial lawyers connected to Southwest Mississippi,” renowned as the center of intense litigation against pharmaceutical companies. (“Bob Pittman, “FBI widening its investigation of campaign funding”, Times of South Mississippi (Hattiesburg), May 5. See also “Diaz’s dad testifies before grand jury”, Jackson Clarion Ledger, Apr. 12; Jerry Mitchell, “Judicial probe intensifying”, Jackson Clarion Ledger, May 2).

“Meanwhile,” the Hattiesburg paper continues, “four trial lawyers who have been active in lawsuits against prescription drug manufacturers are named as defendants in a growing number of court actions in Jefferson County. In at least four suits filed to date, trial lawyers Dennis Sweet, Shane Langston, Richard Freese and Richard Schwartz, all of Jackson, have been named as defendants in cases in which it is alleged that the four either withheld settlement money from clients or failed to pay hired ‘runners’ who were employed to enroll plaintiffs in cases which the lawyers filed in several different counties in Mississippi, including Jasper County.” (May 5 article, cited above). See also Bob Pittman, “Judge asked to step aside in trial lawyer suit”, May 1; Bob Pittman, “Suit alleges lawyer used ‘fake clients'”, May 1. (DURABLE LINK)

May 7 – Jury selection in Britain. Notwithstanding the understandable outcry over a recent case in which a British judge excluded prospective jurors from a politically sensitive trial based on their religion, the general rule in the English system is for jurors to be drawn from a near-universal pool and selection to be made at random. “English lawyers are not pestered by jury consultants: they do not exist here. We do not have days of jury selection before a trial starts, as I have seen for myself several times in the United States, with prospective jurors questioned in depth and sometimes with aggression by lawyers anxious to explore possible prejudices. Defense barristers in England used to have the right of seven (then whittled down to three) peremptory challenges without any need for courtroom interrogation….But Parliament abolished peremptory challenges by the defense in 1989, and although not technically abolished, ‘standing by for the Crown’ [the equivalent for the prosecution] now seldom occurs.” For-cause challenges are rare as well. (Fenton Bresler, “Picking juries — or not”, National Law Journal, Mar. 17, not online). (DURABLE LINK)

May 6 – “Robber sues clerk who shot him during holdup”. Muncie, Ind.: “A convicted robber is suing the convenience store clerk who shot him as he fled after a holdup. Willie Brown, 44, claimed the clerk acted ‘maliciously and sadistically’ in firing five shots as Brown ran out of Zipps Deli with money from the store’s cash register.” Brown, who was struck by bullets in the back and side, pleaded guilty to robbery and was sentenced to four years in prison. His earlier convictions included one for robbery and two for burglary. (AP/Indianapolis Star, Apr. 18). And in Great Britain, “Government lawyers trying to keep the Norfolk farmer Tony Martin behind bars will tell a High Court judge tomorrow that burglars are members of the public who must be protected from violent householders.” (Robert Verkaik, “Government lawyers say burglars ‘need protection'”, The Independent (UK), May 5). Plus: in Bentonville, Ark., inmate Kenneth J. Lewis II is suing Nina Baugh for $140,000 in damages; according to affidavits, Lewis was shot by Baugh after he attempted to burglarize her family’s pawn shop and another business. Lewis was sentenced in January to 12 years’ imprisonment after he pleaded guilty to commercial burglary and aggravated assault (Tracy M. Neal, “Convicted burglar sues woman who shot him during crime”, Benton County Daily Record, Apr. 19). (DURABLE LINK)

May 6 – Year’s most injudicious judges. The National Law Journal‘s annual survey of misbehavior on the bench includes jurists alleged to have slept with litigants, offered to fix cases, set new records for rudeness, and run a Ponzi scheme from chambers, not to mention the jurist who is said to have referred to himself as “God”. (Gail Diane Cox, “The Injudicious: Judges who crossed the line — or erased it”, May 5). (DURABLE LINK)

May 5 – Friends in high places, cont’d. A bill expanding wrongful death damages — a top priority of the state’s trial lawyer association — is moving quickly through the GOP-controlled New York state senate; it happens that the “head of the Judiciary Committee and the sponsor of the bill is big-time trial lawyer John DeFrancisco (R-Syracuse). It’s not just Democrats like Assembly Speaker (and trial lawyer) Shelly Silver who are in the lawyer lobby’s pocket.” (“Lawyer leeches would bleed N.Y.C.” (editorial), New York Daily News, Apr. 18)(more on bill, Business Council of New York State)(see Dec. 13-15, 2002, Oct. 4, 2000). And in Kansas, “Gov. Kathleen Sebelius used her first veto to reject a bill designed to promote rural tourism. Specifically, the bill would shield from lawsuits farmers and ranchers who, for a fee, let people watch and take part in some farm activities. … The strongest opposition to the bill came from the Kansas Trial Lawyers Association, which employed Sebelius as executive director before her election to the House in 1986.” (Steve Painter, “Sebelius vetoes farmer liability shield”, Wichita Eagle, Apr. 16). While with the KTLA Sebelius “worked closely with the Legislature as a lobbyist” (bio) and then went on to attract widespread notice as her state’s insurance commissioner before running for governor. (DURABLE LINK)

May 5 – Prospering despite reform. Some observers thought the Private Securities Litigation Reform Act of 1995 law “was aimed at putting [class action firm] Milberg Weiss — and especially partner William Lerach, the lawyer many corporate executives love to hate — out of business. … Instead, according to a new study by Stanford Law School’s Securities Class Action Clearinghouse and Cornerstone Research, Milberg Weiss is doing better than ever.” (Tamara Loomis, “Milberg Weiss Stronger Than Ever Despite Reform Act”, New York Law Journal, Apr. 24). An analysis for the Cato Institute by Adam S. Pritchard of the University of Michigan Law School concludes that the law has, as intended, worked to raise the average quality of securities suits and weed out those with least merit. (“Should Congress Repeal Securities Class Action Reform?”, Cato Policy Analysis, Feb. 27 (executive summary, full text in PDF format)). (DURABLE LINK)

May 3-4 – “Streets Strewn With Glass, Gold”. Don’t miss this profile of D.C.’s subculture of “accident investigators” who solicit participants in car crashes to file lawsuits, often bombarding their phones with evening and early-morning calls for days. “The lawyer who introduced him to the business was killed by a car while standing on an exit ramp, apparently talking with accident victims, ["personal injury specialist" Warren] Johnson says.” (Libby Copeland, Washington Post, May 1). (DURABLE LINK)

May 3-4 – By reader acclaim: “Student sues over top title”. “A Moorestown [N.J.] High School senior, contending that the district superintendent is engineering new rules that would force her to share the title of valedictorian with another student, sued school officials yesterday. Blair L. Hornstine, 18, who aspires to be a lawyer, asked a federal judge to prevent the school from declaring valedictorian anyone other than the student with the highest GPA.” (John Shiffman, Philadelphia Inquirer, May 2; Tanya Barrientos, “Student’s lawsuit shows lack of class”, May 3). Update May 13: Hornstine wins suit (DURABLE LINK)

May 1-2 – It ain’t heavy to him, he’s my brother. In September, according to the National Law Journal‘s “Verdicts and Settlements” column (Oct. 7, 2002, not online) a Texas jury awarded $134,000 to Jennifer Grobe, an employee of the Granite & Iron Store in Fredericksburg. “According to Grobe, she suffered two herniated lumbar discs when she lifted one of two 100- to 125-pound granite tables that the store’s owners had left in the entrance”. Why Grobe’s claim went to a jury in the form of a lawsuit, rather than to the workers’ comp system, is not clear from the context.

The bit in the NLJ‘s report that drew our attention was the following: Grobe’s suit alleged that her employer was negligent “for placing the tables in the entrance and for failing to comply with store policy by not having two male employees available.” Perhaps we’re missing something, but wouldn’t the employer have faced likely liability exposure if it had enforced a policy of “having two male employees available” to handle heavy deliveries? As any self-respecting sex-discrimination litigator would point out, such a policy closes off some work opportunities to women and trades on impermissible (no matter how generally accurate) stereotypes of men as wielding greater upper-body strength. (DURABLE LINK)

May 1-2 – Those litigious Americans. “An ad for Dutch brewer Heineken NV depicts lawsuit-happy Americans suing each other over spilled beer…The idea is that Heineken is so good it makes Americans abandon their litigious natures.” (Erin White, “National Lampoon: U.K. Ads Satirize American Demeanor”, Wall Street Journal, Apr. 28, online subscribers only). (DURABLE LINK)

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March 8-10 – Will EU silence the pipes? Some Scottish members of the European parliament are warning that new noise regulations could make it unlawful to play their nation’s musical instrument: lowering maximum noise levels to 87 decibels, as is being proposed, could “silence the bagpipes for the first time since Culloden”. “If this goes through then the Queen will have to be without her piper every morning who wakes her up at Buckingham Palace,” said Jim Banks, the head of the Piping Centre in Glasgow. “It is just daft.” An EU spokeswoman denied that the authorities in Brussels wished to suppress bagpipes, but a Tory MEP said the application of the rules to employment contexts could result in the end of professional pipe bands. Two years ago the British defense ministry announced that the din of military brass bands was in violation of job-safety noise limits (see Dec. 22, 2000) (Hamish Macdonell, “EU threat to noisy bagpipes”, The Scotsman, Mar. 6)(more on bagpipers in trouble: June 21, 2001).

March 8-10 – Inability to get along with co-workers. An assembly worker with bipolar disorder “fired in 1996 following a series of conflicts with her fellow employees and what court papers termed ‘her confrontational and irrational behavior’ with her supervisor” is entitled to sue her employer under the Americans with Disabilities Act since the ability to interact or get along with others is “a major life activity”, a federal judge ruled in New York. The employer had responded to the woman’s lawsuit with a counterclaim against her, charging that her erratic and hostile behavior had cost it $500,000 in losses to its operations, but Judge Frederic Block suggested that its counterclaim was “in terrorem tactics” and “a naked form of retaliation” against “a vulnerable plaintiff who suffers from a significant mental impairment, for filing her lawsuit,” and suggested that he might impose sanctions on the company for so foolishly imagining that the accusation game might work in both directions. (Mark Hamblett, “Plaintiff With Bipolar Disorder Protected Under ADA”, New York Law Journal, March 4).

March 8-10 – Near and dear to their hearts. Florida trial lawyers are up in arms over the merest suggestion, from a committee on jury innovations, that it might be time to start rethinking their cherished right to kick prospective jurors off panels without offering reasons or explanations. Thomas Scarritt, chair of the Florida bar’s trial lawyers section, “called any discussion of eliminating peremptory challenges ‘a dangerous move.’ Scarritt told the [state supreme] court ‘that is a subject that is near and dear to the hearts of trial lawyers and we do not think there should be any change whatsoever.'” (Susan R. Miller, “Juror Power?”, Miami Daily Business Review, Feb. 6).

March 8-10 – Crestfallen at the news. “Obviously, we’re disappointed.” — Len Selfon, director of benefits programs for the Vietnam Veterans of America, on word that the Institute of Medicine had found no evidence that the herbicide Agent Orange, to which many veterans were exposed, has contributed to the risk of a form of leukemia in children (“Washington in Brief: Science Panel Retreats On Agent Orange Risks”, Washington Post, Feb. 28) (via Health Facts and Fears (American Council on Science and Health), March 5).

March 6-7 – Updates. Stories that kept on developing:

* “A judge dismissed a lawsuit Monday that claimed several video game and movie makers shared blame for the 1999 Columbine High School massacre. … [Federal judge Lewis] Babcock said there was no way the makers of violent games and movies could have reasonably foreseen that their products would cause the Columbine shooting or any other violent acts. ‘Setting aside any personal distaste, as I must, it is manifest that there is social utility in expressive and imaginative forms of entertainment, even if they contain violence,’ Babcock wrote.” (“Columbine Family’s Lawsuit Against Video Game Makers Dismissed”, AP/Tampa Bay Online, Mar. 5)(see April 24, 2001).

* A Southwest Texas University student who bared her breasts at a wet T-shirt contest in Mexico over spring break 2000 has won a $5 million default judgment against the makers of a Wild Party Girls video who used the resulting topless picture of her in their promotions. She continues to pursue a lawsuit against the E! cable network for airing the “Too Hot for TV” ads with her image. (“Woman in ‘too hot for TV’ suit gets $5 million”, Cox/AZCentral, Feb. 27) (Update Apr. 15: default judgment thrown out). And the quest for a very private Mardi Gras continues as a Florida State University business major “has sued producers of the ‘Girls Gone Wild’ videos, claiming they invaded her privacy and used her image without permission. … [She] admits in her lawsuit that she was among the women on the streets and balconies of the French Quarter last year who removed their tops in exchange for Mardi Gras beads and trinkets.” (Janet McConnaughey, “Coed files suit over nude video”, AP/Polk County Online, Jan. 23)(see Sept. 28, 2001). At Metafilter, user “Mikewas” has some advice (Oct. 1) for how a defense lawyer might try such cases after first determining whether the local jury is of liberal or conservative leaning.

* ” In what is being described as a major victory for the so-called ‘visitability’ movement, two cities in disparate parts of the country [last month] started requiring all new homes to be accessible to the handicapped.” Besides the expected passage of such an ordinance in Naperville, Ill. (see Feb. 6), a new ordinance in Pima County, Arizona “includes the significant additional requirement of a zero-step entrance.” “I thought homes were for the owners,” says University of Chicago law professor Richard Epstein. A suburban Chicago homebuilder says the added expense could run as high as $3,000 a house: “it’s real easy to spend somebody else’s money,” adds J. Mark Harrison, executive director of the Home Builders Association of Illinois. (“Activists Win New Rules Requiring Handicapped-Accessible Private Homes”,, Feb. 10).

March 6-7 – Quest for deep pockets in Ga. crematory scandal. “But while relatives focus their anger on the Marshes, their lawyers have deeper pockets in mind — the funeral homes that sent bodies to Tri-State. The reason is simple: Funeral homes have more insurance. Lawyers know the Marshes’ assets are likely to be eaten up in criminal court defending Ray Brent Marsh, the man charged with theft by deception in the Tri-State case. That leaves the funeral homes, who carry multimillion-dollar liability policies.” (Duane D. Stanford, “Big bucks at stake as lawsuits hit funeral homes that sent bodies to Tri-State Crematory”, Atlanta Journal-Constitution, Mar. 3).

March 6-7 – Washington eyes your 401(k). At Reason Online, Mike Lynch explains why the Enron collapse doesn’t prove what members of Congress keep saying it does about the supposed laxity of pension regulation (“Political Returns”, April) (see Feb. 15).

March 6-7 – Dewey deserve that much? Dig deeper into your pockets, smokers: federal judge Jack Weinstein of the Eastern District of New York “has awarded nearly $38 million in legal fees to New York-based Dewey Ballantine for representing Blue Cross and Blue Shield in a suit against the tobacco industry — more than twice the amount of a jury verdict in the case last year.” (Tom Perrotta, “Dewey Ballantine Given $38 Million Fee Award”, New York Law Journal, Mar. 1). (Update Oct. 23, 2004: New York high court derails award and underlying case.) And Loyola University law professor Dane Ciolino has dropped his challenge of the $575 million in legal fees private lawyers got for representing the state of Louisiana in the national tobacco settlement. Terms were confidential; Ciolino said he is not receiving personal benefit from the deal. “When they signed on to represent the state, the lawyers from 13 different firms became Louisiana assistant attorneys general. The lawyers claimed they acted as independent contractors, not government employees.” (Marsha Shuler, “Tobacco fee challenge dropped”, Baton Rouge Advocate, Feb. 15).

March 5 – Scenes from a malpractice crisis. “In Las Vegas, more than 10% of the doctors are expected by summer to quit or relocate, plunging the city toward crisis. … In California — where juries hearing malpractice lawsuits are limited to maximum awards of $250,000 for pain and suffering — [ob/gyn Dr. Cheryl] Edwards’ insurance premium this year is $17,000 [it had been $150,000 when she practiced in Nevada]. Because of 1975 tort reform, doctors in California are largely unaffected by increasing insurance rates. But the situation is dire in states such as Nevada where there is no monetary cap.”

“Doctors in Oregon have been told to brace for ‘breathtaking’ increases in malpractice insurance premiums in coming weeks. … When the Oregon Supreme Court in 1999 rejected as unconstitutional a $500,000 lid on pain- and- suffering awards in malpractice cases, jury awards of $8 million, $10 million and $17 million swiftly followed. … The Arizona border town of Bisbee has lost its hospital maternity ward because four of the town’s six obstetricians can no longer afford to practice. … Both trauma centers in Wheeling, W.Va., have closed because their neurosurgeons couldn’t pay their new malpractice premiums. The trauma center at Abington Memorial Hospital outside Philadelphia faces closure next month as its doctors scramble to find affordable insurance.” (Tom Gorman, “Physicians Fold Under Malpractice Fee Burden”, Los Angeles Times, Mar. 4; also (same story) Boston Globe; Joelle Babula, “Malpractice Crisis: Trauma unit faces cuts”, Las Vegas Review-Journal, Feb. 7). In Mississippi, where trial lawyers hold great sway in many courts and recently blocked tort reform in the state legislature, an 18-doctor group of emergency physicians in Hattiesburg two years ago “paid $140,000 for malpractice insurance. Last year, the premium went to $250,000. The next annual premium would be $437,500 or $475,000…” (“Cost to cover errors in ER to rise for doctors”, Hattiesburg American, Jan. 26). See also Geekemglory blog, Dec. 13. (DURABLE LINK)

March 5 – Case for declaring wars, cont’d. “The framers had good reason to separate the dangerous power to declare (and finance) war from the power to command the armed forces.” Unfortunately, Congress nowadays tends to abdicate its responsibility by delegating to the White House discretion on whether to institute hostilities. (Sheldon Richman, “Anything to declare?”, Foundation for Economic Education, Feb. 16) (see Sept. 13, 2001) (via Free-Market.Net).

March 5 – “Man awarded $60,000 for falling over barrier”. Australia: “A surfer who fell and injured his back when he stepped over a guard rail to urinate has been awarded more than [A]$60,000 in compensation. Paul Andrew Jackson was aged 35 when he crossed a bicycle bridge on the Pacific Highway at Kanahooka, in Wollongong South, and stepped over a barrier to relieve himself in what he thought was ground level bush.” (The Age (Melbourne), Mar. 4). Update Mar. 8-9, 2003: award overturned.

March 4 – 9/11: grab for the gems. Lawyers have sued large Manhattan jewel dealer STS Jewels Inc., the Tanzanian Mineral Dealers Association and other defendants, seeking to attach proceeds from the sale of the popular gemstone tanzanite on behalf of victims of Sept. 11 terror. Muslim radicals with links to Al-Qaeda are widely believed to have engaged in trading in the gem, which is extensively smuggled out of Tanzania, the East African country where it is mined. “Yesterday, representatives of STS and the Tanzanian Mineral Dealers Association vehemently denied any connection between their industry and al Qaeda. ‘My sympathies to the victims, but this is ridiculous,’ said STS owner Sunil Agrawal.” Among lawyers involved in filing the action are Texas asbestos lawyer Mark Lanier, corporate defense lawyer Paul Hanly and celebrity lawyer Ed Hayes. (Jerry Markon, “Tanzanite Dealers Named in Suit Brought by the Families of Victims”, Wall Street Journal, Feb. 15 (online subscribers only)). See also Ralph R. Reiland, “Lawyers Lust for 9-11 Gold” (The American Enterprise, Feb. 18). And a great Stuart Taylor, Jr. column from January that we somehow missed back then: “How 9/11 Shines a Spotlight on Litigation Lottery”, (National Journal/The Atlantic, Jan. 8).

March 4 – No reply. Lawyers from Jacoby & Meyers have filed a class action suit against online payments firm PayPal alleging all manner of atrocities in its customer service. “PayPal’s spokesman said he could not comment on the suit because his company is in the midst of a [legally mandated] post-IPO [initial public offering] quiet period.” You get to accuse them, and they can’t answer back — isn’t it fun being a lawyer? (Cheryl Meyer, “Class Action Filed Against PayPal”, The Deal, Feb. 25).

March 4 – A menace in principle. Under a law that took effect in New Hampshire last year, police are required to arrest and hold until arraignment anyone accused of violating a domestic protective order. So when a woman in the town of Farmington charged her estranged husband with placing harassing phone calls, they had to haul him in, even after a visit to his house revealed that he is blind, uses a wheelchair, and is on dialysis, leaving him not much of a credible threat to anybody. “Police had to wait three hours for an ambulance to bring [him] to the jail, but the jail wouldn’t hold him because of potential liability.” (“State domestic violence law puts police in bind”, AP/Manchester Union-Leader, Feb. 25) (via Free-Market.Net).

March 1-3 – Should have arrested him faster. “A convicted sex offender wanted in Florida who fled into the Maine woods from police is complaining that he got frostbite and lost a few toes because he wasn’t arrested fast enough. Harvey Taylor, 48, who spent at least three nights in the woods in Mattawamkeag after running from a Penobscot County Sheriff’s detective a few weeks ago, is threatening to sue the detective for not arresting him promptly.” (Mary Anne Lagasse, Flight from law leads to frostbite, threat of lawsuit”, Bangor Daily News, Feb. 27).

March 1-3 – Too much Nintendo. “A Louisiana woman is suing Nintendo, alleging her 30-year-old son suffered seizures after playing video games for eight hours a day, six days a week.” (AP/Minneapolis Star Tribune, Feb. 24; Brett Barrouquere, “Woman sues Nintendo in death of her son, 30″, Baton Rouge Advocate, Feb. 23).

March 1-3 – Batch of reader letters. We’ve fallen far behind both on posting reader letters and in answering our mail (and unfortunately we can’t answer all of it). Still, we’ve managed to put up a batch of letters from the closing weeks of last year. Topics include safe deposit boxes at the WTC, a federal judge’s decision striking down high school sports schedules that put boys’ and girls’ sports in different seasons, and discrimination against motorcyclists.

March 1-3 – Entitled to jobs that kill? On Wednesday the Supreme Court heard argument on the case of Echabazal vs. Chevron, which poses the question: “Does the Americans with Disabilities Act force employers to hire disabled workers for a job, even when the position could cause injury or death to the worker?” The Bush administration and business groups are trying to advance what turns out to be the controversial proposition that “employers have an interest in keeping their employees from being hurt or killed.” (Michael Kirkland, “Are disabled entitled to jobs that kill?”, UPI, Feb. 27; Warren Richey, “Can a disabled worker put himself at risk?”, Christian Science Monitor, Feb. 27; Marcia Coyle, “Rejecting a Worker”, National Law Journal, Feb. 26)(see Nov. 5, 2001). Update: Court unanimously rules for defense (see Jun. 19-20, 2002).

March 1-3 – Launder mania. Rushed through Congress in the weeks after Sept. 11, the USA Patriot Act “requires every financial institution — not just traditional banks — to monitor and to report suspicious customers to federal officials.” The paperwork and compliance burdens will be enormous, but there is little assurance that the program will make much difference in preventing terrorism, which tends to be accomplished on relatively small budgets. (Krysten Crawford, “On the Home Front”, Corporate Counsel, Jan. 22) (see Nov. 29, 2001).

March 1-3 – Welcome listeners. Popular Atlanta-based broadcaster Neal Boortz calls this site “one of my frequent stops” in researching his show (Feb. 27). He sure does have a lot of listeners — our traffic on Wednesday, when he did a segment paying us this tribute and endorsing loser-pays, was among the best ever.

Another noteworthy bit from his commentary: “Day after day people file lawsuits just to ‘see if we can get the other side to pay something.’ I’ve been there, folks. I’ve seen it. I was a member of the Georgia Trial Lawyers Association and the American Association of Trial Lawyers. I went to the conventions. I sat in the meetings. I participated in those discussions where lawyers would say ‘I know we don’t have a case — but maybe they would rather fork over a hundred thousand or so rather than taking the chance of going to trial. Hell, their expenses alone would be more than we’re asking!'”.

September 15 – Got to love us. We noticed yesterday morning that this site’s tracking counters had begun ticking away like mad and that a large percentage of our new visitors were from domains at official U.S. government agencies. For a moment we wondered whether we were under some sort of surveillance. Then to our relief and elation we discovered we’d been written up in the Washington Post, specifically in Richard Morin’s and Claudia Deane’s column “The Ideas Industry”, which covers the policy world. “Here’s an Internet address you’ve got to love:, a Web site recently launched by Manhattan Institute senior fellow Walter Olson. Olson writes that he launched the site to document ‘the need for reform of the American civil justice system.’ The page is updated regularly with legal horror stories, data links and such.” (link now dead).

September 15 – “A few rhinestones shy of a full tiara”. Organizers of the Miss America pageant backtrack on their plans to drop questions in which contestants are asked to certify that they’ve never been married or pregnant. The idea of the change “was to bring the contestant contract into compliance with New Jersey laws against discrimination”, CEO Robert Beck said in an affidavit filed in connection with a legal action by state pageant directors challenging the new rules. Between remodeling the Boy Scouts and cases like this, New Jersey discrimination law certainly keeps itself busy. (Yahoo/AP, link now dead). In the St. Petersburg (Fla.) Times, columnist Robyn Blumner says pageant officials, in their struggle to disguise a good-looks contest as an exercise in diversity awareness and feminist empowerment, “must be a few rhinestones shy of a full tiara”. (full column)

September 15 – Perps got away, but equity was served. Employment lawyers are watching the fate of Lanning v. SEPTA, a case in which a three-judge panel of the Third Circuit ruled against the Philadelphia transit authority for having had the temerity to prefer transit-cop recruits who could run far enough and fast enough (1.5 miles in 12 minutes) to stand a decent chance of nabbing a fleeing suspect before getting tuckered out. A higher percentage of men than of women passed the test, not surprisingly since the average man significantly outdistances the average woman on leg strength, aerobic capacity, and suchlike variables. But that meant the test had “disparate impact” and was legally suspect. By a two-to-one vote, the appeals panel concluded that federal antibias law precludes SEPTA from maintaining anything more than “minimum requirements”. The transit agency is petitioning the U.S. Supreme Court for certiorari. (Dan Seligman, “Lowering the Bar”, Forbes, Sept. 20) (& updates Oct. 5-7, 2001: federal government drops support for suit; Oct. 25-27, 2002: Third Circuit panel rules 2-1 for SEPTA).

September 15 – “Teach but don’t touch”. “Adults working with children are warned by superiors worried about lawsuits against showing too much affection toward their young charges. ‘Teach but don’t touch,’ a lawyer for the National Education Association told the membership in 1995. ‘If you hug a child, even a child who is hurt or crying, I will break your arms and legs…If kids need help in the bathroom, take an aide with you, or let them go on the floor.’ Trained as if they were preparing to enter the opposing counsel’s meeting room, camp counselors have become ‘less relaxed around children,’ according to one camp consultant, even though youngsters ‘come to camp with more emotional baggage than they did just five years ago.” — from pp. 15-16 of City Journal contributing editor Kay Hymowitz’s newly published book, “Ready or Not: Why Treating Children as Small Adults Endangers Their Future — And Ours” (Free Press). That business about “let them go on the floor” was a joke, we think. And that business about breaking your arms and legs. We think.

September 14 – Blackboard jungle. The town of Ann Arbor, Mich. (population 109,000) is facing a calamitous $30 million in legal liability, a sum amounting to $1,100 for every family of four within its borders. What did its taxpaying citizens do to deserve such a costly chastisement at the hands of the civil law? Did they invade and pillage neighboring Saline, putting 200 homes to the torch? Did they bid defiance to Michigan State on the day of the big game by vandalizing 30,000 cars belonging to MSU fans? No; through their elected representatives, they employed substitute teachers from 1990 through last year on a written understanding that they wouldn’t be entitled to promotion to full-time status. A court ruled that the agreements to waive promotion were invalid, class-action lawyers did their thing, and now the back pay bills are coming due, payable to subs who might have made a career in the Ann Arbor schools had the policy been otherwise: $265,000 and $177,000 for two Ypsilanti residents, $135,000, $128,000, and $104,000 for former substitute teachers who now live in Kansas City, Cincinnati and Nevada, amid a long list of others. Now the town’s suing its former law firm for malpractice, ensuring that yet more wealth will be thrown on the blame-seeking pyre. (Paul Rioux, “School board OKs malpractice suit”, Ann Arbor News/Michigan Live, Sept. 9 (no longer online))(& letter to the editor from lawyer who brought the case).

September 14 – Gunmaker bankruptcies: three, and counting. The first wave of business casualties consists of Southern California makers of inexpensive handguns: Sundance Industries of Valencia has joined Lorcin Engineering of Mira Loma and Davis Industries of Chino in seeking protection from creditors. According to Peter Boyer’s article in the May 17 New Yorker, the cost to the gun industry of defending against the campaign of city lawsuits recently orchestrated by trial lawyers has been projected to reach $1 million a day — that’s just defense costs, aside from any chance of losing, and given this country’s lack of a loser-pays rule it’s money the manufacturers can never expect to recoup no matter what vindication they may obtain in the end. Lawyers for the cities reportedly intend to argue that their claims against the gunmakers — speculative, newly concocted and retroactive though they are — should be given better treatment in bankruptcy proceedings than the ordinary claims of other creditors, on the grounds that they’re meant to advance the “public welfare”, whereas the other creditors’ claims are grounded in the mere obligation of law actually on the books. (Paul M. Barrett, “Lawsuits Trigger Gun Firms’ Bankruptcy Filings”, Wall Street Journal, Sept. 13.)

September 14 – Careful what you tell your lawyer. Through much of the American legal system, the need to assure clients confidentiality in what they tell their lawyers is taken so seriously that large amounts of sharp practice and abuse are tolerated lest it be infringed to even a small degree. But an exception is rapidly growing: if your company is under investigation for environmental offenses, it may no longer be safe to level with your lawyers. According to David Lyons in the Miami Daily Business Review, defense lawyers are increasingly alarmed by a trend in which the federal government’s attorneys, as a condition of agreeing to resolve charges, are demanding that businesses turn over the bulk of their lawyers’ litigation files, including such things as the notes from employee interviews taken during lawyer-led internal investigations. Once workers realize that what they say can be turned over to the authorities, they may start withholding information from the lawyers, in turn making it harder to demonstrate flaws in the government’s case. A big case settled this summer against Royal Caribbean Cruises typifies the new brand of prosecutorial hardball. (Sept. 10 — full story).

September 14 – “Truly egregious” conduct. A unanimous panel of Michigan’s Court of Appeals has thrown out a $15 million malpractice verdict won by flamboyant attorney/radio host Geoffrey Fieger against William Beaumont Hospital in Troy. Not only was the expert witness testimony insufficient to prove the case, the court said, but Mr. Fieger had engaged in misconduct that was “truly egregious — far exceeding permissible bounds” in the proceedings against the hospital and cardiologist Dr. David Forst. Along with “repeatedly and with no basis in fact accus[ing] defendants and their witnesses of engaging in conspiracy, collusion and perjury to cover up their alleged malpractice,” the judges wrote, Mr. Fieger
‘insinuated, outrageously, and with no supporting evidence that Dr. Forst ‘abandoned’ [the patient] to engage in a sexual tryst with a nurse.” (“Appeal reverses malpractice award“, Detroit News, Aug. 24; editorial, Aug. 25). Mr. Fieger called the panel’s ruling a “laughable decision by three [Gov. John] Engler henchmen” and vowed to file misconduct charges against all three judges. (“Briefly”, Detroit News, Aug. 25).

Best known nationally for having defended Dr. Jack Kevorkian at his criminal trials, Mr. Fieger was the unsuccessful Democratic candidate for governor of Michigan in 1998 and as such remains titular head of the Michigan Democratic Party. His earlier disciplinary run-ins have included sanctions for submitting misleading pleadings and for trying to evade random-selection procedures in the assignment of federal judges to his cases. On July 21, a Detroit News editorial criticized as excessive a record $21 million award for another of Mr. Fieger’s clients, who had sued DaimlerChrysler over sexual harassment. In a rebuttal which ran in the News August 11, Mr. Fieger said the paper’s editorialists had told “bald-faced lies” about him based on “total garbage”.

September 13 – Join our new Verdict Rewards program. On September 3 a deadlocked jury declared itself unable to reach a decision in a tax fraud case against eccentric New York millionaire and political gadfly Abe Hirschfeld. Elated, Mr. Hirschfeld proceeded to throw a lunch at which he handed each juror a check for $2,500. Only “one or two” of the ten saw fit to turn down the money, although a couple of the others were said to have agonized very becomingly about whether to cash the checks. Apparently there’s no current law on the books that bans paying off juries after the fact.

It’s become a common occurrence for jurors to be invited as guests to lavish acquittal balls thrown by freed defendants, and boxing promoter Don King raised the ante after his fraud acquittal when he treated federal jurors to a Bahamas vacation. Outright cash gifts might seem a logical extension. The extra twist in Hirschfeld’s case is that he’s a “serial defendant”: his trial on charges of hiring a hit man to kill his business partner is set to start today, and word could easily spread among the next set of jurors that this is a man from whom money can be expected. Hirschfeld himself says he’d have given jurors the checks even if they’d convicted him. (Uh-huh.) (DeWayne Wickham, Gannett; Clyde Haberman, “Jury Booty: It’s Lucrative and Legal“, New York Times (free, but requires registration), Sept. 10)

September 13 – New page: Fear of flirting. Tenth and latest in our series of topical links-and-commentary pages takes a reform-oriented look at sexual harassment law.

September 13 – “Judges rule on cases in their portfolios”. In 1997 at least eight federal appeals judges sat on cases in which they, their spouses or trusts held stock in one of the parties, in violation of ethics rules, according to a report from the left-wing Community Rights Counsel, an anti-property-rights group. Most of the judges blame inattention to spouses’ or trusts’ stock dealings for the errors. (Joe Stephens, Washington Post, Sept. 13 — link now dead).

September 13 – “You got to get you a little money”. In this now-classic episode, ABC’s “20/20″ staged a fake accident on the streets of New Orleans and called the cops. Within minutes street hustlers who monitor police radios were on the scene handing out lawyers’ business cards. One arrived in a gold Jaguar. “Might as well say you hurt your back and your neck. You know what I’m saying? ‘Whiplash! Whiplash!’ Guaranteed. About $4,000 to $6,000.” The “passengers” kept insisting they weren’t hurt, but the runners weren’t easily discouraged: “You got to get a little money. A couple thousand of dollars. It ain’t going to cost you nothing. It ain’t going to cost him nothing.”

There’s money in driving a tow truck, too, if you know how to work the game. “And you go in the attorney’s office itself, and he will pay you cash money.” How much? “Between $600 and $700 per person.” Gordon Stewart of the Insurance Information Institute says fraudulent crash claims add up to a $25 billion industry: “if you had this business, you’d be doing pretty well. You’d be in the top of the Fortune 500″. Also caught on camera: a New York chiropractor coaching an accident victim on how to fake pain symptoms: “You’ll get the Oscar here, babes, don’t worry.” He billed for 94 visits, though the patient reported only seven.

Then there’s the growing problem of deliberately caused collisions with innocent drivers aimed at setting up liability claims. One convicted Texas operator said he targeted elderly drivers as victims because, being less alert, they weren’t as good at avoiding the accident, and added that fraud rings he set up for Lone Star State lawyers and doctors had deliberately caused at least 300 accidents in two years. “We have a law office that makes $20 million in two years, you know? Net …” Most sinister case of all: a scam artist in Springfield, Mass. engineers a traffic accident that goes wrong and kills an innocent driver: he later falsely claims to have held the dying man in his arms, so as to support his own claim for post-traumatic stress disorder. (rebroadcast Aug. 25 – full transcript)

September 11-12 – Knock him over with a feather. Indian tribes, in negotiations with the state of California over lucrative slot machine concessions, ceremonially award Gov. Gray Davis an eagle feather as a token of their personal esteem. Then come the legal complications: you or I or even the governor of a big state could be sent to prison under federal environmental laws for knowingly possessing even a single feather of a protected bird. No showing is needed that any creature was improperly molested in its gathering: naturally moulted quills found in your back yard can also get you in serious trouble, as can feathers from birds that have died from natural causes or were raised in captivity. In publicized cases, law enforcers have gone after persons arriving from abroad with antique stuffed birds and a Michigan artist who used old stocks of feathers as part of her collages. Davis’s office hastened to put out word that the dangerous object very likely belonged to the state of California itself (which would be lawful) rather than to the governor personally. (Dan Morain, “An Eagle Feather — and Controversy — for Governor”, Los Angeles Times, Sept. 9; Fox News (link now dead)).

Both Davis and his Indian benefactors are likely to come out in better shape than did James W. Thomas, a 38-year-old resident of Des Moines, Iowa, whom a federal judge sentenced in 1996 to six months home confinement and three years’ probation after he pleaded guilty to one felony count of violation of the Migratory Bird Treaty Act. Thomas had sold an eagle feather bonnet and several other eagle-derived knickknacks to undercover Fish and Wildlife Service agents. According to the summer 1996 issue of Federal Wildlife Officer, “Thomas operated a business in downtown Des Moines known as the Feather Emporium, where he sold imitation eagle feathers and Native American crafts.”

September 11-12 – “Cook County law bills a secret”. Two lawyers with extensive political connections have charged the Cook County sheriff’s office $3.7 million for representation over the last two years, which included three high-profile cases. For example, William R. Quinlan, a former judge and chief city attorney over three mayoralties, charged $810,000 for 16 months of work on one case at a stated rate of $180 an hour plus undetermined expenses, suggesting either that his expenses were very high or his work weeks exceedingly long. The true explanation may remain a mystery because neither taxpayers nor even the members of the official Cook County Board of Commissioners, which was on the hook to pay the expenditures, have been permitted to see the details of what the lawyers billed for, including such basic information as the number of hours they put in. Instead, the two attorneys arranged for judges to seal the billing records, locking them away in a vault — for the sake of protecting sensitive information, they say. (Tim Novak, Chicago Sun-Times, Sept. 7, link now dead)

September 11-12 – Overlawyered classrooms. A survey of 523 school principals, done with the assistance of the American Tort Reform Association, finds nearly two-thirds say they see more lawsuits than ten years ago. “Whenever we plan for anything in a school today, our first consideration is how to avoid a lawsuit,” said executive director Vincent Ferrandino of the National Association of Elementary School Principals. Supreme Court decisions on harassment and disabled rights add to existing exposures over employment, playing-field injuries and civil liberties violations. “We tell our principals to err on the side of safety, but they say we have lawyers looking over our shoulders ready to pounce on us,” said executive director Gerald Tirozzi of the National Association of Secondary School Principals. Threats of litigation are disruptive and often lead to payouts of several thousand dollars even if no suit is filed, another official says. An expert on the other side says school litigation isn’t rising in volume and calls the school administrators “paranoid”. (Anjetta Mcqueen, “Liabilities, Threats Burden Schools,” AP/Washington Post, CNN, links now dead)

September 10 – Too many games at GM? General Motors’ gas tank designs may be solidly defensible, but what about its litigation tactics? According to an Atlanta judge, certain memos in the automaker’s possession resembled Rose Law Firm billing records: first they existed, then they ceased to exist when a court asked for them, then they went back to existing again. Meanwhile, company witness Edward Ivey was developing a case of convenient memory syndrome, forgetting even basic facts about the circumstances in which he wrote a supposedly damning memo but suddenly able to remember bits of evidence that helped the company’s case. Moreover, writes Judge Gino Brogdon, GM’s motions and arguments in several lawsuits proceeded to describe Ivey as having affirmed various assertions about the distribution and purposes of the memo when all he’d said was that he couldn’t remember the opposite. Who did these folks think they were working for — the Clinton White House? (judge’s opinion; Bill Rankin, Atlanta Constitution, Sept. 9; Trisha Renaud, Fulton County Daily Report; AP/Washington Post Sept. 9 morning and evening stories, links now dead; Lawyers for GM said they were “disappointed” by the judge’s ruling, called it inconsistent with rulings by other courts, and said the company intends to pursue every means of appeal, but as of this morning GM had not yet posted a press release at its website. ( coverage of this summer’s Chevy Malibu trial: July 10, August 27; page on auto safety litigation).

A reason to approach the new ruling with caution is that at least one of its crucial assertions of fact appears flatly incorrect, concerning the now-famed “Ivey memo” which sought to guesstimate the aggregate costs of post-crash fires in GM-made automobiles. In the third paragraph of his opinion, Judge Brogdon describes the memo as having “concluded that GM could prevent such fires and the resulting fatalities by spending a mere $2.40 per vehicle in safety improvements.” But even a cursory reading of the two-page Ivey memo itself, which the magazine Mother Jones has posted at its website, shows that it did nothing of the sort. While (wrongheadedly or not) attempting to quantify the benefits if GM could someday find a way to prevent all post-crash fires, the memo describes it as “impossible” to do that until some way is found to power cars without flammable fuel (p.2), and reveals nothing at all about whether Ivey or anyone else at the company knew of any design changes that they believed could reduce the incidence of fires even marginally — let alone whether such changes had been costed out at $2.40 or any other number.

Some light is indeed shed on these latter questions by a longer memo, prepared by GM lawyers in the course of litigation, which reconstructed discussions among the company’s fuel-system engineers at the time, and which is also posted (apparently in excerpted form) at the Mother Jones site. The memo depicts the engineers (pp. 3, 4 in Mother Jones’s pagination) as concerned about the safety tradeoffs of alternative gas tank placements, and as viewing forward placement of the tank as a decidedly mixed bag on safety grounds since, while improving protection from rear-end collisions, it would increase the likelihood that spilled fuel would enter the passenger compartment during other types of accidents. The memo includes no indication as to whether one placement would have been more or less expensive to manufacture than the other. Trial lawyers keep hammering away at the charge that GM refrained from instituting life-saving improvements because it had costed them out at $2.40 a car and decided not to spend the money; but if there is any evidence to that effect, it does not appear in these supposed smoking-gun documents that they have proffered to the public.

September 10 – State of legal ethics. Whether by coincidence or not (see above item) the August 2 National Law Journal runs a big column in its section aimed at practicing lawyers under the title: “Discovery: What’s wrong with coaching?” Jerold S. Solovy and Robert L. Byman, fellows of the American College of Trial Lawyers and partners at the respected Chicago firm of Jenner & Block, argue that when it comes to witness preparation, [w]e need to take the pejorative connotation out of ‘coaching’.” They hasten to point out that they’re not advocating changing witnesses’ stories. But they view it as quite okay to suggest language to friendly witnesses that is, well, more effective for the purpose at hand than the language they had come up with themselves, so long as it’s not false. They also declare that while there may be “tactical” reasons to the contrary, they see no ethical problem in trying to turn a witness who’s hesitant and diffident about his narrative into one who radiates confidence — even though the “demeanor evidence” conveyed by hesitance and diffidence may be of considerable truth value to a court. And while acknowledging that many forms of coaching clearly go over the ethical line, Solovy and Byman approvingly quote Holmes’s comment [in Superior Oil, 280 U.S. 390, 395-96 (1930)] that “[t]he very meaning of a line in the law is that you intentionally may go as close to it as you can” — seeming to confound the legal question of what you should be able to escape punishment for doing with the ethical question of how you should in fact behave.

September 10 – Hope for the Philadelphia- abducted. Judge Pamela Pryor Dembe, of the court of common pleas in the City of Brotherly Love, has thrown out on forum non conveniens grounds a lawsuit filed by Connie Endre against the Trump Marina casino in Atlantic City over injuries Ms. Endre said she sustained when she tripped over a vacuum cleaner cord at the casino hotel. In this case the accident had taken place in New Jersey, which was also the state where Ms. Endre lived and worked, where she had gotten her medical treatment, where the defendant casino was headquartered, and where the likely witnesses were located. So how did the suit come to be filed in Philadelphia, instead of New Jersey? One explanation might be that the law firm Ms. Endre had signed with was based in Philly; another might have been the reputation for generosity of that city’s juries. “Everyone loves a Philadelphia jury,” agrees plaintiff’s attorney Elizabeth Gray of Rosenbaum & Associates.

“These cases are fairly routinely filed in Philadelphia and difficult to get out of Philadelphia despite the lack of ties to Philadelphia,” defense attorney Robert Lawler of Wilbraham Lawler & Buba told Robert Sharp of the city’s Legal Intelligencer. (See also Sept. 1 commentary, on suits filed by employees of the New York-New Jersey PATH train system.) “This case, to my mind, reflects a carefully thought-out decision [by the judge] that there were no ties to Philadelphia other than the plaintiff’s law firm being in Philadelphia.” Carefully thought out, yes, but sadly rare: “Attorneys for both the defendant and plaintiff called the outcome unusual.” Isn’t it time it was made less unusual? (Sept. 3 — full story)

September 9 – Giuliani confinement ends. A jury that happened to include the mayor of New York City took only 50 minutes to reject Oliver Johnson’s claim that negligently over-hot shower water had dealt him a highly personal injury. Plaintiff’s lawyer Joe Kellner blamed a young lawyer in his firm for letting Hizzoner onto the case rather than exercising a peremptory challenge. But Giuliani, who served as foreman, said he let the other jurors go first in stating their opinion, and by the time the case came around to him it had already been decided. (Post, Daily News, and links now dead: AP/Newsday, New York Observer).

September 9 – A case of meta-False Claims. Sharp practices in Medicare billing have been a well-documented scandal, so it was easy to assume the U.S. Department of Justice knew what it was doing in 1997 when it filed charges against roughly 145 hospitals for alleged overbilling; its crackdown invoked the False Claims Act, a law that levies stiff penalties against those who submit fraudulent bills to the government. But then prosecutors took a closer look and concluded that the hospitals had not violated the law after all in a fair number of the cases, which were accordingly dropped, according to a General Accounting Office report issued last month. Unfortunately for those defendants, there doesn’t seem to be much of a remedy for having false claims made against you under a law called the False Claims Act. (Peter Aronson, “Claims by DOJ Lacked Proof”, National Law Journal, Aug. 19 — full story) (see Jan. 18 commentary)

September 9 – “Complaints against lawyers up again”. Grievances against New York attorneys hit a record 13,528 statewide in 1998, up 58 percent in eight years. Public and private sanctions applied against them were up by similar margins of 56 and 52 percent. Reassuring fact that isn’t nearly so reassuring when you think about it: much of the increase reflects simply the persistent rise in lawyers’ numbers, rather than any change in their standard of practice. (Gary Spencer, New York Law Journal, Sept. 8).

September 9 – “Bringing art to court”. The movie Natural Born Killers “is the target of an increasingly notorious lawsuit” claiming it inspired a real-life shooting. The judge agreed to let the suit proceed, First Amendment or no, and already another Hollywood-did-it suit is moving forward, this time blaming The Basketball Diaries for the Paducah school shootings (see July 22 commentary). The itch to control what’s shown on screen hasn’t changed much since the days of the Hays Office and its Production Code, writes Jesse Walker, “[b]ut this is uncharted territory. As bad as the old censorship was, it did not require artists and entertainers to measure in advance every possible effect their work could have on every possible person in their audience.” (Reason, August/September). Salon‘s David Horowitz calls the political-legal onslaught against the entertainment industry “a consciously designed parallel to the assault on tobacco and gun manufacturers” and deplores the “authoritarian vision” of the Weekly Standard‘s recent pro-censorship cover article: “With conservatives like these, who needs liberals?” (Aug. 30).

September 8 – Wages of wrongdoing. According to news reports in June, sentencing is set for this Friday, Sept. 10, in the case of two prominent Staten Island attorneys convicted on multiple counts of paying insurance adjusters more than $100,000 to give them favorable terms on some $2.5 million in settlements, in disloyalty to their companies. After an eight-week trial, a federal jury deliberated for three and a half days before finding the firm of Grae, Rybicki and its partners Frederic Grae and Thomas Rybicki guilty on all 23 counts of the indictment.

The case began with a 1995 probe by the Manhattan District Attorney’s office that led to the indictments of 21 attorneys along with several middlemen who served as conduits for bribes. Along with wiretap recordings, prosecutors obtained actual ledgers used by middlemen in which they recorded their bribe activities. Many guilty pleas and convictions have resulted, with some cases still pending. Companies whose employees participated in the scheme, without knowledge of higher management according to prosecutors, included Aetna, Geico, American International Group (AIG), and Commercial Union.

A lawyer for Rybicki had argued that his client and Grae were unaware that money they gave middlemen was being used to bribe adjusters, instead saying that the go-betweens were being paid “for their skill and expertise in evaluating cases and negotiating settlements, especially in multi-defendant cases where several carriers were involved.” He also said that the transactions had not defrauded insurance companies because the cases had settled for fair value.

Press coverage has described Grae & Rybicki as the largest law firm on Staten Island; Frederic Grae is a former president of the Richmond County Bar Association and Thomas Rybicki is a former president of the Staten Island Trial Lawyers Association. (New York Law Journal, June 17) (New York Daily News, June 18).

September 8 – Billabong update: surfer clothing gets a reprieve. Officials at Winneconne High School in Wisconsin have changed their mind and decided to lift their ban on clothing with the brand name “Billabong” (see “Annals of Zero Tolerance”, Sept. 2, below). The word is of Australian aboriginal origin and means lagoon or backwater, but a principal contended it was too suggestive of “bong”, the word for a marijuana pipe (Milwaukee Journal-Sentinel, Sept. 6). In the Chicago Tribune, columnist Steve Chapman decries the way school-shooting hysteria has led administrators to ban bookpacks and trench coats and treat the students compelled to attend their institutions as “dangerous, incorrigible, undeserving of respect” and without privacy rights. “What’s the difference between school and prison? At school, you don’t get cable TV.” (Sept. 2 –full column)

September 8 — Marbled Murrelet v. Babbitt: heads I win, tails let’s call it even. Environmentalist litigators on the West Coast circle the wagons to defend a cherished principle: they get to extract fee awards from their opponents when they win, but their opponents don’t get to extract fee awards from them when the case falls out the other way. It may be unfair as all get-out, but to them it’s precious, and the Ninth Circuit has just revamped its attorneys’ fee jurisprudence to make the fee entitlements even more asymmetrical than before (California Law Week, Aug. 30 — full story)

September 7 — How to burnish your community’s image. The Detroit suburb of Melvindale has sued WKBD-TV and anchor Amyre Makupson over news coverage which may have associated the town in viewers’ minds with the idea of cockroaches. The station’s coverage, over four days last month, focused on neighbors’ alarm about a roach-ridden local dwelling and included file footage from an earlier infestation incident, all of which, per allegations quoted in the September 2 Detroit Free Press, “reduced the city’s marketability and harmed the property, credit and public goodwill of the community”. (The station denies its coverage was unfair or inaccurate.) How better to improve your town’s image than by filing a legal action guaranteed to generate many more news stories and a stack of permanent legal documents linking the words “Melvindale” and “cockroach”? For the record, when your editor briefly visited the unpretentious downriver community last year, he does not remember observing even a single member of the family Blattidae. (“TV reports on roaches spur lawsuit” — full story).

September 7 — Labor Day: “Overworked America?” Your editor was one of the panelists on yesterday’s “Lehrer News Hour” discussion on this subject, which PBS has now posted in transcript and Real Audio form at its website. Not much on legal issues (although the “family-friendly workplace” theme came up) but he did manage to slip in a few reasons why hand-wringing on the subject of long workdays may be overdone, namely that: 1) working conditions have improved immeasurably since the now-romanticized 1950s and very few of us would change places with our fathers’ jobs; 2) most people who work very long hours today do so as a choice and because they’re ambitious in some way; 3) one of the perennially undercovered Labor Day stories is “how little the conditions of average workers seem to have been changed by the much-heralded decline of unionism” (he ducked after that one).

September 7 — The shame of the ACLU. There are many sad aspects to the California Supreme Court’s decision last month in Aguilar v. Avis, upholding an injunction in a workplace harassment case against an employee’s future use of racial epithets for any reason and under any circumstances. It’s too bad that by a margin of only one vote — over heated dissents, to be sure — the high court managed to pretend there’s no real conflict between workplace harassment law and the First Amendment right of free speech. It’s too bad it was allowed to duck the problem of the injunction’s overbreadth, often deemed a constitutionally fatal flaw when it comes to injunctions restraining speech. And it’s too bad the American Civil Liberties Union threw away any remaining reputation it may have had for putting civil liberties first, by intervening on the side opposed to free speech — because it considers antibias norms more important. (“Court Upholds Hate Speech Gag”, San Francisco Recorder, Aug. 3; columnist Vin Suprynowicz, Las Vegas Review-Journal, Aug. 9).

September 7 — 25,000 pages served on Pretty good for just over two months into the project, we think. Thanks for your support!

September 7 — “Addictive tobacco money”. If the state attorneys general that sued cigarette companies were to be believed when they said they were just trying to reclaim money needlessly expended by taxpayers, you’d expect their states to apply the settlement windfall to lowering taxes, right? How many of the fifty states have actually done that? (If we’re lucky, the number might get up to three.) “From the very start, the settlement was a swindle,” editorializes Investor’s Business Daily. But “[w]hat do you expect from government officials who are addicted to other people’s money?” (August 27, link now dead).

September 7 — Click here to sue! A website for disgruntled former AOL volunteers (“community leaders”) makes it easy to join a class action suit accusing the giant Internet service provider of paying them no more than they bargained for (i.e., nothing at all) when they carried out volunteer administrative tasks in areas of interest to them. “[W]e suggest you NOT advise AOL of your intent or involvement with the lawsuit until AFTER your Consent has been duly filed in the Court…It will not cost you a single penny to join the lawsuit.” The World Wide Web would certainly be a different place if all volunteer effort that went toward website creation and maintenance had to be redefined as an employment relation subject to withholding and the Fair Labor Standards Act. Most likely, it would still be a mere gleam in the eye of Al Gore.

September 7 — Oops! Please don’t read above item. We were about to announce the imminent unveiling of‘s brand-new Discussion Boards, which will give visitors a chance to comment on the site’s contents, react to current news stories, share outrageous (but documentable!) tales of litigation, and do the other sorts of fun/serious stuff associated with bulletin board systems. As part of the announcement, we were going to call for volunteers to moderate particular forums, propose threads for discussion, help nip inappropriate postings in the bud, and do the other sorts of volunteer tasks that make the difference between a chaotic bulletin board and one that people enjoy using. Then we learned about the AOL situation (please don’t read above item!) and realized someone could come after us for not paying these volunteers wages and time-and-a-half, giving them paid vacation, rectifying the ergonomic problems they run into from excessive keying, keeping them from flirting with each other, and so forth. Now we’re biting our nails and wondering whether to call the whole thing off, or ask volunteers to sign forms in triplicate saying they’re definitely not employees of this site, not a labor-management nexus at all, no employment relationship nohow. If any readers undeterred by all this want to volunteer anyway to help with the bulletin boards, give us an email.

September 4-6 — Okay, we admit it: we admire these lawyers. More than forty Seattle attorneys, led by the criminal defense bar under the rubric of the Innocence Project Northwest, mobilize to represent more than a dozen of the railroaded defendants convicted of child-abuse crimes in the Wenatchee, Wash. hysteria of the mid-1990s. In all, 43 local residents were accused and 28 convicted, many given sentences of more than twenty years, on evidence the flimsiness of which came to national notice through the efforts of the Wall Street Journal‘s Dorothy Rabinowitz and others. In one story so dramatic it could hardly be bettered by a Hollywood scriptwriter, lawyers raced this February to beat the deadline for contesting the conviction of Henry Cunningham, who’d been given a 47-year sentence. They made it to the courthouse with only 18 minutes to spare before a shroud of finality descended on Cunningham’s case, prosecutors declined to defend his conviction, and today he’s a free man. (Elizabeth Amon, “A White Knight’s Tale”, National Law Journal, August 20, 1999 — full story). The Seattle Post-Intelligencer‘s 1998 roundup on the Wenatchee debacle was entitled “The Power To Harm“.

September 4-6 — Bite marks in Big Apple. New York City paid out a record $381 million in lawsuit verdicts and settlements last year, an 18 percent leap from fiscal 1997. That’s about $200 annually for every Gotham family-of-four. The great majority (83 percent) of the total was paid out on personal-injury claims, the rest going for property damage and contract claims. The figures don’t include the Transit Authority or other off-budget agencies. (New York Post editorial — Sept. 2)

September 4-6 — Business-interruption claim of the week. A South Carolina judge has rejected Kenneth Curtis’s claim that the state owes him money for disrupting his business when it passed a law banning the sale of urine for the sake of beating drug tests. Curtis says the law has cut into his three-year-old enterprise of selling his urine over the Internet ($69 plus shipping for five ounces). His argument that the law is unconstitutional is still pending, but a lawyer for the state says that it is protected by official immunity from money claims on the issue (AP/Spartanburg, S.C. Herald-Journal, Sept. 3)

September 4-6 — Rude questions to ask your doctor. Why, exactly, has the organized medical profession elected to ally itself with America’s trial lawyers to make it easier to sue health plans? Do they really think in the long run giving the lawyers a new and deeper pocket to go after is going to relieve the negligence-suit pressure on them? The National Association of Manufacturers takes a dim view of the docs’ apparent feed-the-wolf strategy, especially since its employer-members, as operators of health plans, are prime candidates to serve as Purina Wolf Chow. NAM points out that physician-Rep. Tom Coburn (R-OK) recently decried a measure that would make it easier to find out if a doctor has been sued, protesting, “Ninety percent of suits against doctors are without merit.” (Wall Street Journal, Aug. 24.) Yet this is the same bunch of litigators Coburn wants to turn loose to sue health plans. (Workplace Watch newsletter, Sept. 1999).

September 3 — New survey of state-court verdicts. There’s plenty of genuine news to be gleaned from the release of a new Bureau of Justice Statistics study on tort, contract and real property cases decided in state court in the nation’s largest counties in 1996 (study available here). For example, the new numbers should permanently lay to rest the assertion, often heard from trial-lawyer advocates, that the real source of high litigation rates is businesses suing over contract disputes (“Businesses file 10 times as many lawsuits as injured consumers”, claims the Washington State Trial Lawyers Association; “Business cases account for 47 percent of all punitive damage awards,” chimes in the Association of Trial Lawyers of America). In fact, the BJS study found that businesses made up a scant 7.8 percent of plaintiffs at jury trials and 16.3 percent at trials generally, with individuals the plaintiffs in 91.1 percent and 81.5 percent respectively; and that the overwhelming majority of punitive damage payouts came in tort, employment and other cases typically filed by individuals.

Unfortunately, most of the press has followed the Bureau of Justice Statistics’s own press release in highlighting two findings of the study which 1) aren’t very newsy or surprising and 2) are readily misinterpreted by newcomers to the field. The first of these is that plaintiffs won about half of the cases that went to trial; the second is that plaintiffs won a slightly higher percentage of cases tried before a judge alone (“bench trials”) than they did of cases tried to a jury, though damages were lower in the bench-trial cases. The higher rate of plaintiff success in judge-tried cases strikes some reporters as ironic and counterintuitive since judges are said to be more skeptical of plaintiffs than juries are, and here they are giving them more victories — that sure must refute the conventional wisdom, no?

The reason a roughly 50-50 win rate at trial isn’t very newsworthy is that it’s an almost pure artifact of the process by which only a tiny percentage of all lawsuits wind up reaching trial, the rest being settled or withdrawn before that point. As UCLA’s Benjamin Klein and Yale’s George Priest (among others) have demonstrated, trial win rates will tend to converge on a middling figure because clear-winner and clear-loser cases are more likely to settle beforehand, leaving for trial a residue of cases whose outcome informed lawyers have trouble guessing. That’s why win rates so often come out around 50 percent at many different times and places around the world, including both highly litigious environments where lots of money gets redistributed and highly unlitigious ones where the preconditions for getting into court are quite demanding. Nothing at all can be inferred from such numbers (standing alone) about whether a litigation system is pro-plaintiff or pro-defendant, headed in a liberal or conservative direction. If one type of case begins winning more often before juries, more marginal examples of that same kind of case will be emboldened to take their chances where they would not before, and many of these former long-shots will lose, pushing the win rate back down.

And what of the higher rate of plaintiff success at bench trials? Cases that wind up being tried before judges are far from a random cross-section of cases tried in general, because in this country most money claims can be tried to a judge alone only by consent of the parties, and individual tort plaintiffs are seldom willing to waive their jury rights (and when they do, it’s usually because they recognize that special circumstances make them likely to do better going with the judge). The practical wisdom among many attorneys is that it can make sense for a plaintiff to agree to a bench trial when the likelihood of proving liability is strong but there is no great likelihood that a sympathy factor will drive up damages. The study’s results — slightly higher win rates but lower damages in those cases where plaintiffs have consented to bench trial — are entirely consistent with that wisdom (Washington Post, Sept. 2; link now dead.)

September 3 — EEOC encourages anonymous harassment complaints. “Concerned that employees may be reluctant to report complaints, the EEOC guidance [issued this June] advises companies to offer a phone line through which individuals can ask questions or discuss concerns about harassment anonymously. Yet management attorneys have strong reservations about the idea. Employers are obligated to investigate all harassment complaints, they say, but this is tougher to do when they come in anonymously over the phone.” Thus reports Lisa Fried in the Aug. 19 New York Law Journal. Read that again carefully, and you almost have to conclude that what’s holding up the bright idea of setting up snitchlines to facilitate anonymous denunciation in American workplaces is not that anyone’s worried about what happens to the targets of these complaints, who will find themselves the subject of suspicion and internal investigation without even knowing who their accuser is; no, it’s that following up on faceless complaints of harassment is tougher on the investigators. (full story)

September 3 — My lawyer is an impostor. Georgia officials scratch their heads at the frequency with which bold residents of their state simply hang out a shingle and start practicing as lawyers, though innocent of either law school or the bar exam. W. James Thompson pulled off such an imposture for 13 years. Andre D. Taylor put together a marketing package and mission statement for his bogus law firm, and showed up as a role model at a high school’s Career Day. The more careful of the ersatz avocats stick to areas like filing demand letters which allow them to avoid going to court or dealing with real lawyers. Unsettling aspect: “many clients of fake lawyers are perfectly happy. Indeed, some of these people have built their practices on client referrals.” “We really liked him,” said one client of Thompson, who drove Jaguars and a Mercedes-Benz. (Ann Woolner, Fulton County Daily Record, Aug. 2 — full story).

September 2 — Charity dollars support trial lawyers’ gun jihad. If you amassed a fortune in business and decided to devote it to charitable pursuits, would you want it spent to help America’s trial lawyers expand product-liability law even further? The Capital Research Center‘s August 1999 Foundation Watch reveals that big philanthropies are helping bankroll the litigation campaign that’s trying to take down the gun industry. The list of foundations includes many well-known names: George Gund, Joyce, Charles Stewart Mott, Richard & Rhoda Goldman Fund, Eugene & Agnes Meyer Foundation, George Soros’s Open Society Institute, and others. Also getting into the act, as members of the Coalition to Stop Gun Violence and similar groups, are such Main Street institutions as the YWCA [not, as previously reported, its male counterpart, the YMCA; this was a mistake of the Coalition itself which passed into later reporting], Presbyterian Church USA and National Urban League. Of course many of these big entities, like many of the lawyers and municipalities they’re assisting, have far more money in the bank than the family-owned gunmakers whose legal torment they’re helping to finance, yet neither they nor anyone else will have to pay a nickel to make whole the vindicated defendants if their newly concocted legal theories misfire in court. Don’t you sleep easier than you would if you’d gone into a career in philanthropy? (full report; sidebars one, two).

September 2 — Tainted cycle. Litigation may be winding down over the 1993 outbreak in the Milwaukee water supply of Cryptosporidium, a parasitic microbe found in human waste. In 1994 a trial court agreed to certify a class of some 400,000 persons believed to have gotten sick, a sizable proportion of the local population, exposing the city to potentially huge damages even though most of the illnesses had been transitory: “Multiply anything times 400,000 and you have a lot of money,” said Linda Hansen, attorney for the city. Hansen explained that “if the city ended up paying, the money would make a circular trip from the taxpayers and back,” to quote a reporter’s paraphrase. Taxpayers pay the water utility’s bills, and “since it is some of those same taxpayers who are suing, they would simply be getting their own money back, less the legal fees.” Sparing them that fate, the courts later decertified the class. Individual suits were allowed to proceed, but the pending case involves about 200 plaintiffs as opposed to 400,000. (Milwaukee Journal-Sentinel, August 29 — full story)

September 2 — Annals of zero tolerance. Officials at Winneconne High School in Wisconsin have banned t-shirts and other clothing with the “Billabong” brand name because the name is too suggestive of “bong”, the term for a marijuana pipe. An Australian aborigine word meaning lagoon, “Billabong” is the name of a company that originally made surfboards and later branched into surf clothing. “I realize Billabong is a surfing company,” said principal Ed Dombrowski. “If we were in California or Florida where they do a lot of surfing, I would understand. But we don’t surf here so where do we draw the line?” Where, indeed? Adam Szadkowski, who was ordered to go to the restroom and turn his shirt inside out to conceal the offending word, found the rule “ridiculous”: “Are they going to ban us from wearing a shirt that says ‘potato’ just because it has the word ‘pot’ in it?” (Milwaukee Journal-Sentinel, Sept. 1 — full story)(see update, Sept. 8).

September 1 — Alabama story goes national. Arianna Huffington is the first national columnist to tackle the story of last month’s indictment of a prominent Alabama trial lawyer for allegedly orchestrating false charges of rape and assault against a tort-reforming Lieutenant Governor candidate last fall (see August 26 commentary). Huffington says the rape story was “blast-faxed” to the Alabama media “one week before a critical fund-raising reporting deadline” and that Republican Steve Windom’s campaign went into a tailspin as he was forced to move into full-time damage control and protect his horrified family from the media glare. In an interview, Windom tells Huffington, “It would have been impossible to disprove the charges in time for the election if it were not for a whistleblower — a trial lawyer who gave us the plot, chapter and verse.” (August 30; full column).

On August 20 the Associated Press reported that the former director of the Alabama Trial Lawyers Association, Don Gilbert, and the group’s former spokesman, Mike Martin, were granted immunity in the probe. Lawyers for the two men stressed that no wrongdoing on their part should be inferred, while Ivey law partner Barry Ragsdale scoffed that “Tommy Chapman [the prosecutor] was giving out immunity agreements like mints at a party”. AP also said that according to the indictment, Ivey was charged with paying accuser Melissa Myers $ 2,700 in connection with her role. A press release from the U.S. Chamber of Commerce describes Ivey as one of the state’s most active lawyers in filing class actions. Update: a jury in June 2000 acquitted Chappell, acquitted Ivey of the felony bribery charge, and convicted Ivey of the two misdemeanor counts of witness tampering and criminal defamation; appeal planned (see Aug. 31, 2000). Further update: in July 2001 the Alabama Supreme Court reversed these convictions and ordered Ivey acquitted of the charges (see July 7, 2001).

September 1 — Time to overhaul jury selection. Yale law professor Peter Schuck gets called for jury duty and is dismayed at how lawyers are allowed to probe and challenge jurors for “biases” that consist merely of healthy skepticism, at the removal of prospective jurors for being too well-informed, and at the endless squandering of all sides’ time in the fighting over who should be empaneled. “In truth, good lawyers use voir dire not to eliminate bias but to create it, by favorably predisposing jurors to their case before any evidence is presented.” (P.S. He doesn’t get on the panel.) (National Law Journal, Sept. 6 — no longer online).‘s editor took a look at jury selection issues some time back and came to much the same conclusions.

September 1 — “Block PATH to lawsuits”. Hard-hitting editorial in Aug. 30 New York Daily News on the litigation woes of the troubled PATH train system, which links New Jersey commuters to New York City. Unlike city subway systems, which are covered by workers’ comp laws, PATH is officially a railroad and thus falls under the sue-’till-you’re-blue Federal Employer’s Liability Act (FELA). In 1908, when FELA was passed, one in eight railroad workers was injured on the job. But PATH’s 1,100 employees have filed 1,086 pending injury claims, approximately one apiece. “Is railroading more dangerous now than then? Hardly. PATH employees have simply gotten good at milking the system.”

If that sounds like too harsh an judgment, the News backs it up with stories galore. PATH employee Anthony Courtney had already filed two injury claims when he climbed a tree in his yard to saw off a branch that was interfering with his TV reception, fell and hurt his foot. Job-related, he insisted, because the earlier injuries had interfered with his grip. Another worker sued for psychological stress after seeing a rat in a tunnel under the Hudson. 325-lb. dispatcher John Myrlak sued after his chair cracked and gave way underneath him, and a jury voted him $1.5 million, saying he should have been given a bigger chair. PATH eventually won all these cases — Myrlak’s award was thrown out after eight years of legal wrangling — but the defense costs help bring PATH’s cumulative annual claims payout to $6 million, or about $5,500 per current employee. Curious fact: most of the claims against the rail line are filed not by lawyers in the local NY/NJ area but by four law firms in Philadelphia, far from PATH’s operations, apparently because Philly lawyers are the ones who know how to work the FELA levers. (full editorial; scheduled to remain online until Sept. 4).


July 15 — Honey, you’ve got mail. Some Floridians are learning about their impending divorces by opening their mail to find “Dear prospective client” brochures from local divorce lawyers. The phenomenon can arise when attorneys solicit would-be clients before a departing spouse has served them with papers.

The U.S. Supreme Court granted constitutional protection to some forms of attorney solicitation back in the 1970s, and it has since become an ever-more-systematic business. Private services compile names from daily divorce filings and sell them to lawyers, who then try to beat competitors to the punch by getting brochures to prospects as soon as possible, many hiring private delivery services. “These things are hitting the mailboxes of the respondents before they even know their spouse has officially filed,” said Warren Wilson, a Clearwater lawyer who’s trying to get the state bar’s ethical rules changed to curb the practice.

Wilson says one man returned from his mother’s funeral in South America to learn from three lawyers’ letters in his mailbox that his wife had left him. Aside from inability to reach the other party, service of process can be delayed for various other reasons, including holidays and vacations, tactical or prudential reasons, or perhaps even second thoughts about whether to go through with the action. In a case that happened this summer, Wilson says, a Clearwater woman filed for divorce but did not serve the papers at once, waiting for family members to fly in to protect her. Before that could happen, a lawyer’s flyer reached her husband, who came to the woman’s house and beat her.

Florida lawyers must observe a 30-day waiting period before soliciting accident victims, but no such rule applies in matrimonial cases, a situation Wilson would like to change. (Associated Press and Canada’s National Post, links now dead.)

July 14 — Do as we say, please. “We have been so focused here in New Orleans on getting guns off the street and protecting our citizens,” declared Mayor Marc Morial in making his city the first to sign up in the trial lawyer campaign to sue gun makers. Which makes it rather ironic, as Jake Tapper reported in Salon yesterday, that one of the leading sources of guns on the resale market is none other than the city of New Orleans. In what may be the largest deal of its kind ever to happen in the U.S., Big Easy’s city hall recently helped itself to a nice budgetary windfall by recycling for street use, through an Indiana broker, some 7,300 guns, most confiscated from lawbreakers. They include TEC-9s, AK-47s, an Uzi and various other semi-automatics whose importation and manufacture the U.S. Congress banned in 1994.

New Orleans’s suit demands that gunmakers equip their wares with child-proofing and safety locks. But it attached no such condition to the resale of the guns in its own inventory, only two of which had locks among the thousands it shipped. Nor did it require that the guns be resold only to other police departments, a financially unwelcome stipulation since weapons may fetch only half as much on the market when that particular string is attached.

Other localities now suing gun makers while profiting from gun swaps, often of used police weapons as distinct from confiscated guns, include Boston, Detroit and Alameda County, Calif. “In essence, these cities served as gun distributors themselves,” writes Tapper. Sometimes cities have arranged deals through the very manufacturers they’re now suing, such as Glock. Boston is charging gun sellers on a newly minted legal theory that they displayed “willful blindness” to what happened after guns left their hands, but itself attached no strings to resale when it got rid of more than 3,000 .38s.

Another of the novel legal theories holds it unconscionable for manufacturers to cater to the full sales demand of shops located in gun-friendly states and suburbs when they know a certain percentage of the merchandise will wind up in the hands of city residents. Morial has defended New Orleans’s gun-dumping on the grounds that the city required that the weapons not be immediately resold in Louisiana (“not in my bayou”, as Tapper puts it, pointing out that it’s apparently fine with Morial if guns flood into any city outside his own state). But predictably, not long after an initial shipment to Texas, some of the guns in the deal began showing up at New Orleans shops.

Meanwhile, trial lawyers have recruited Indian tribes to sue tobacco companies even though the exemption of reservations from state taxes has long made cigarette sales a huge money-maker for many tribes. Albuquerque trial lawyer Turner Branch, who had signed up 15 tribes and was negotiating to represent 50 more, conceded to the Rocky Mountain News in March (link now dead) that some of his prospective clients themselves numbered among tobacco sellers but said it was “terrible they got put in that position”, which makes running a tax-free smoke shop sound like something that could descend like hail on any of us on the wrong day. (Coming soon: they forced us to run casinos.) It will keep happening so long as the trial lawyers can keep getting laws changed retroactively.

July 13 — Puff, the magic fees. The private lawyers representing the state of Wisconsin in the tobacco wars initially demanded $847 million in fees, then agreed to accept $75 million. (Well, close enough.) Then they fought to prevent public disclosure of the billing records on which their fees were based, poignantly citing “ethical issues”. Three newspapers went to court to pry open the informational clamshell, and the state attorney general’s office finally released a 900-page stack of records yesterday, with results reported in this morning’s Milwaukee Journal-Sentinel.

The lawyers now claim to have spent 26,284 hours on the case. Taking this claim for a moment at face value, it would indicate that their initial fee demand worked out to an average rate exceeding $32,000 per hour, and that even after backing off on that demand they will still be making fees of $2,853 an hour. (The law firms involved are Habush, Habush, Davis and Rottier of Milwaukee; Brennan, Steil, Basting and MacDougall of Janesville; and Whyte Hirschboeck Dudek of Milwaukee, none of which returned the Journal-Sentinel‘s calls for comment.)

How many of these billable hours were reasonable and necessary? They include time spent purportedly by lawyers on matters more often handled by office administrators, such as setting up bank accounts and securing office space, furniture and parking. What about time spent on legal issues? The artful structure of the Medicaid suits makes it hard to know how much legal research was really needed for any individual state’s suit; lawyers representing a few states like Minnesota could do much of the heavy lifting on which other states’ lawyers could then piggyback. At any rate, the Wisconsin lawyers’ own accounting includes ample amounts of time spent on fee negotiations themselves; on working the press and scoping out the Governor and other political players; and in preparing a constitutional challenge to proposed legislation that would curb their fees.

In addition, the lawyers billed $2,037,668.45 in reimbursable expenses. This included $7,818.80 for a chartered plane to fly attorney Robert L. Habush, former president of the Association of Trial Lawyers of America, roundtrip from Florida to Washington (coach fare would have been $906), $851.50 for roundtrip limo service to whisk Habush from Milwaukee to Madison and back on May 5, 1997 (among other limo bills for trips between those cities), and $800.75 for New York City limos during a day of fee negotiations.

The Ashland Press in northern Wisconsin editorially pointed out in April that the median household income in its neck of the woods ran at $20,000 in 1990, which meant the lawyers had demanded as much for an hour of work as the typical family made in a year. (The state, meanwhile, had requested $209 an hour for its own lawyers.) A state bar report claims the average Wisconsin lawyer makes $44,000 a year, corresponding to about an hour and a half of the tobacco lawyers’ time as per their initial demand and 15 and a half hours (potentially, one very long day’s work) under the award they settled for.

Tobacco fees have already become a hot political topic in other states including Massachusetts (link now dead), where Gov. Paul Cellucci has called the local fee request “obscene”, and Texas, where cozy fee dealings have been referred to prosecutors for possible action.

July 12 — Loser-pays endorsed by Martina. “The loser of a lawsuit should pay the legal fees,” writes Martina Navratilova. “These days, as soon as a person feels slighted or injured (physically or emotionally), they look for someone to sue….The hope is not to win, but for the quick $50,000 — because it’s cheaper to settle than to fight.” The tennis pro’s comments are among the highlights of a new paperback entitled 250 Ways To Make America Better, compiled by Carolyn Mackler and the editors of George magazine (Villard, 1999).

Not only do costs and insurance rates go up when targets have to settle, Navratilova points out, but “prohibitive rules increase, and freedom is diminished. Freedom used to mean that one is free to achieve, to dream, to aspire, to think — free to do what is right. By assigning blame elsewhere, people are taking our freedom away.” There’s more, all of it eloquent, in the great athlete’s contribution (which is numbered #9 of the 250 “ways to make America better”). Moreover, loser-pays is also the first reform proposed by musician Ice T in his entry (#41). “Let them pay the money, and they’ll leave you alone.” Your editor’s entry in the volume is “#98: Abolish the Peremptory Challenge”.

Speaking of jury selection, your editor’s thoughts on the trial that led to last Wednesday’s Miami cigarette verdict appear as today’s “Rule of Law” column in the Wall Street Journal (online subscription required). Readers of had a chance to see much of this material first (see entries for July 4 and July 8, below).

July 11 — Thought for the day. From American Lawyer‘s symposium last November on the international practice of law: “It is very sobering to me, as an American, and someone who actually believes in our system, to see foreign companies say over and over that the one thing they won’t put in their contracts is a clause that this is going to be governed by American law or be subject to an American jurisdiction. It makes one wonder whether we are really the most sophisticated commercial country in the world or a banana republic when you get major worldwide corporations doing that. I think it is a sobering issue for the American judicial system.”

– Robert Joffe, deputy presiding partner, Cravath, Swaine & Moore

July 10 — In L.A., redesigning the Chevy. More details have begun to emerge about yesterday’s $4.9 billion Los Angeles jury verdict against General Motors to six people severely burned in a crash of their 1979 Chevrolet Malibu. A drunk driver plowed into Patricia Anderson’s car from behind at a red light at a speed estimated by GM at 70 mph and by plaintiffs at 50 mph; the gas tank caught fire. The plaintiffs argued that it was unconscionable for GM to place the fuel tank 11 inches forward from the rear bumper when an earlier design had placed it more than twenty inches forward. Of course other gas tank placements, while reducing the risk from rear-end impacts, tend to increase the risk from other types of impacts, such as those from the side — and in so doing put the fire source closer to the passenger compartment. Yet according to GM lawyer Richard Shapiro, quoted in the New York Times (link now gone), Judge Ernest Williams of L.A. County Superior Court barred the company from introducing into evidence crash test data showing that the plaintiffs’ proffered alternative design was in fact less safe.

GM’s Shapiro said Judge Williams also barred the company from introducing data on the actual safety history of the vehicle, which has now been on the road for twenty years, long enough for a very full picture to emerge of its overall performance in crashes. In those twenty years, the National Highway Traffic Safety Administration has apparently never deemed the location of the Malibu’s fuel system to be a problem. In the controversy a few years back over the placement of gas tanks on the side of full-size GM trucks, plaintiffs’ lawyers managed to divert attention from the fact that nationwide accident data showed the trucks to be substantially safer in collisions than the average vehicle on the road, a topic your editor wrote up at the time for the Wall Street Journal.

One reaction to the news that a 1979 Malibu can be hit from behind at a differential speed of (possibly) 70 mph and have all six of its passengers survive is to wonder whether they still build ‘em that sturdy anymore — especially considering the mandated fuel economy rules which have forced automakers to lighten up cars structurally since then. (Your editor is quoted in this morning’s AP business story as saying, with respect to vehicles that can withstand being rear-ended at 70 mph, “There is a word for that kind of car: a tank.”)(Sacramento Bee).

For those who are still goggling at the record $4.9 billion sum that the jury plucked from the air (with trial lawyer assistance) as a suitable damage figure — $107 million was compensatory, the rest punitive — here are some comparisons. A quick flip through the World Almanac reveals that $4.9 billion exceeds the gross domestic product of a long list of United Nations member countries (I stopped counting after two dozen). In fact, you could roll together the GDPs of the following eleven UN member states and still not get up to $4.9 billion: Bosnia-Herzegovina, Grenada, Comoros, Vanuatu, St. Kitts and Nevis, St. Vincent and the Grenadines, Micronesia, Dominica, Palau, Marshall Islands, and San Marino.

A crowning outrage: GM’s lawyer said the judge had also refused to allow the jury to hear evidence that the other car’s driver had been drunk and went to jail. News stories have still not named the drunk driver. (see update, August 27, and‘s page on auto-safety litigation).

July 9-11 —‘s first award. We’re happy to be named today’s Conservative Site of the Day, an honor given out by Steve Martinovich’s Enter Stage Right zine. We’ve discovered a lot of interesting web resources by browsing ESR’s archive of past Sites of the Day, including the Unofficial P.G. O’Rourke Page, the Critiques of Animal Rights page, the National Anxiety Center and Forfeiture Endangers American Rights.

July 9 — Be sensitive to Fluffy, or else. The Seattle Times reported in April that the owner of a small consignment clothing shop in the city’s Wallingford neighborhood has been forced to pay more than $650 and undergo sensitivity training because she refused to let a woman bring her dog into the store. Last November, Chaya Amiad entered Sharon Kempler-Jones’s Gypsy Trader shop with a small, shaggy dog on a leash and was told she had to leave it outside. “She became very upset,” recalled the store owner, who said the rule made sense because dog dander and clean clothing don’t mix. “She said, ‘Well, this dog can go anywhere, and you are going to hear from my attorney.'” Sure enough, within days a letter arrived from the Seattle Office for Human Rights charging Kempler-Jones with denying a disabled person access to her business.

Disabled? Amiad wasn’t deaf or blind, nor did she display any other visible handicap. Instead, it turned out that she was “emotionally dependent” on the dog. She even produced a note in which her psychologist assured the human rights office that the dog “has been privately trained to assist Ms. Amiad with cognitive disorientation and confusion” and that without this canine companionship “Ms. Amiad would probably become housebound and highly dependent.” And that was enough for them to rule that Kempler-Jones had committed disability discrimination — never mind that she had no way to know Amiad’s psychiatric status at the time. She was ordered to pay a fine and submit to sensitivity training, one element of which presumably consisted of writing fifty times on a blackboard: if someone asking for special treatment claims to be disabled, better take their word for it.

A few years back the Wall Street Journal’s editorialists reported on a case where the San Diego Zoo was targeted with disability-bias charges because it declined to let service dogs accompany visitors into exhibits where the resident animals might by instinct become agitated upon seeing even a well-behaved dog. The zoo had offered to provide individual human guides instead, which didn’t satisfy disabled-rights advocates. (The WSJ piece is not online to nonsubscribers, but you can read disabled-rights advocates’ side of the story). An online brochure from the Association of the Bar of the City of New York explains that business owners “almost never” have the right to decide for themselves whether to admit a service animal. It also mentions New York’s potential $50,000 fines (aside from lawsuit damages) for first violators, and notes that when federal, state and local laws are in conflict, whichever is most favorable to the disabled complainant prevails.

July 8 — Personal responsibility takes a vacation in Miami. Most observers are betting yesterday’s jury verdict against tobacco companies will be overturned on the issue of class certification. In the mean time, here are some preliminary tidbits that indicate how such cases get tried these days before friendly judges. At jury selection last summer, prospective jurors were quizzed on their reading habits and views on seemingly unrelated issues like gun control. Nine of the first twelve prospective jurors got purged, mostly for holding views considered prejudiced against the plaintiffs — apparently typified by a former smoker of three decades who said “I just think people are and have been well aware of the detriments of smoking…To come back after the fact, I find that somewhat ridiculous.” People with that sort of “bias”, apparently, mustn’t be allowed to serve on juries. (Daytona Beach News-Journal trial coverage). Six jurors remained.

Through the proceedings, plaintiff’s attorney Stanley Rosenblatt packed the courtroom with attendees wheezing loudly, with portable oxygen tanks and mechanical voice boxes (CNN) — though, since individuals’ state of health was not at issue in this round, defense attorneys had no way to question any of these spectators to establish whether they were even members of the class. Nor had they any better luck in objecting to what they said was inflammatory race-baiting on the stand by a plaintiff’s expert, Dr. Alan Blum of Doctors Ought to Care, on the subject of ethnically targeted marketing (race wasn’t supposed to be an issue in the case).

Might the jurors have been improperly influenced by ads they saw over the course of the trial? Plaintiff’s attorney Rosenblatt said yes, raising two rounds of objections because the defendants did not suspend advertising in South Florida markets during the year-long proceedings. Were these, perhaps, “issue ads” promoting the companies’ position on liability matters? No; one was a product ad for the introduction of a new brand, Kool Natural Lights, while the other was a national anti-youth-smoking campaign (according to Rosenblatt, the buying of ads in 49 unnecessary states in order to reach his juror pool in one merely proved how “clever” a ploy it was).

Circuit Judge Robert Kaye expressed concern about the Kool ad (it “raises one’s eyebrows“) — mustn’t have jurors being manipulated, after all. Yet he dismissed defendant objections over an incendiary anti-tobacco-company ad that ran only in Florida — and during the Super Bowl. Conveniently purchased by the state government with its tobacco settlement booty, the ad depicted the testimony of cigarette executives being interrupted by a canned audience laugh track — nothing anyone might find manipulative while a trial was in progress. Several jurors admitted they were watching the game when the state ad came on.

In their earlier tobacco lawsuit, a secondhand smoke class action, Stanley Rosenblatt and wife Susan cut a deal with tobacco defendants which set aside $300 million for a newly formed charitable research group, $0.00 for the members of the class of flight attendants that the Rosenblatts were supposedly representing, and $46 million in legal fees for guess who. A brief by Public Citizen’s Alan Morrison charged that this “gargantuan” fee sum “appears to be grossly excessive” and said the alleged settlement “violates fundamental tenets of fairness and adequate representation”.

July 7 — A Civil Action II? Trial lawyers had high hopes the John Travolta movie A Civil Action would ignite public anger about the way minute quantities of chemicals in the environment supposedly cause everything from childhood leukemia to depression and poor reading scores — a near-limitless source of potential litigation, if true. That didn’t happen, partly because of thoughtful coverage in places like the New Yorker (Atul Gawande, “The Cancer-Cluster Myth”, February 8, 1999, not online, summarized at Dartmouth’s Chance News) and New York Times (Gina Kolata, “Probing Disease Clusters: Easier to Spot Than Prove, January 31, 1999, reprinted, U. Fla.). “Over and over again,” Kolata reported, scientists have come up empty handed in finding anything more than statistical artifacts in such clusters. “Huge amounts of money” have gone into trying to link clusters to low-dose chemical exposure, says Harvard statistician James Robins, yet “nothing has come of it.”

The Civil Action film turned in only a so-so box office performance, but Hollywood doesn’t give up easily. Now the L.A. Times is reporting (link now dead) that shooting has begun in Ventura on a Julia Roberts vehicle, provisionally titled “Erin Brockovich,” about a real-life legal secretary (Roberts) working for a personal-injury lawyer (Albert Finney) who stumbles onto a case where children in a small town are sick and organizes a successful lawsuit against Pacific Gas & Electric, whose pollution is said to be responsible. Almost guaranteeing attention to the project is that Roberts’s salary for doing the film is $20 million, said to be a record for a female star.

Your editor’s critiques of A Civil Action in both its book and movie form, along with a lot of other material about the underlying case, are to be found at his Woburn Skeptic’s Page.

July 6 — What a recommendation. Considering that not long ago practically everything about the O.J. Simpson case was big news, it’s surprising how little discussion there’s been of this spring’s announcement that the famed non-murderer has agreed to do television ads for — yes, it sounds like a bad joke, but it’s true — a lawyers’ referral group. (AP story in Fort Worth Star-Telegram/ A spokesman for Justice Media, a 1-800-number marketing service, says the ads will be aimed at the minority community.

Nicole Brown Simpson’s sister Denise said she was “appalled” (WCCO), the California state bar said it wanted to look into the newly formed referral service (San Diego Daily Transcript), and the New York Daily News’s Juan Gonzalez reported more details about David Lee, the attorney “friend” who persuaded Simpson to do the ads. (A big New York City personal injury operator and protégé of the famed Harry Lipsig, Lee has been dogged by client complaints and just finished a two-year bar suspension).

“The Simpson ad brings to mind the many reasons why so many lawyers objected for so many years to the idea of lawyers advertising on television,” observes the Chicago Tribune’s Clarence Page (link may be dead). “They were afraid of something just like this, that the most brazenly greedy and cynical face of the legal world would be broadcast daily through the media.”

July 5 — This time, bombing the taxpayer. “Lawyers Plan Compensation Claims in Tanzania Bombing”, reports MS/NBC (link now gone). Simultaneous attacks last August on the American embassies in Nairobi, Kenya and Dar Es Salaam, Tanzania killed more than 200 people and injured more than 5,000. Guess who soon arrived on a mission of mercy? American lawyers, of course, including the California firms of John Burris; Sterns & Walker; and Herron & Herron, to claim negligence by the American government, which was of course the terrorists’ target. U.S. Embassy spokesperson Lisbeth Keefe in Dar es Salaam “expressed dismay” at plans for such a suit: ”We were victims of this bombing, too.”

What’s next? Probably a long wrangle in which the American trial lawyers, in their own inimitable display of patriotism, feed the African press a steady diet of news leads making the U.S. government look as bad as possible, leading to a settlement sticking it to American taxpayers. In short, a second victory for the terrorists. The best coverage ran in U.S. News in March, “Lawyers Mop Up After Embassy Bombing“, which reported that Burris, an Oakland-based civil rights lawyer who’s defended basketball bad guy Latrell Sprewell, stands to collect one-third of any settlement received by the more than 2,000 Kenyan clients he’s signed up, though contingency fees for lawyers are illegal in Kenya as in most countries. The secret is to file the suits in the U.S.

July 4 — “A de facto fourth branch of government.” Today we celebrate the American founding with its blueprint for a government of separated and sharply limited powers. Last month’s fascinating American Lawyer piece on the origins of the firearms litigation reported that prominent trial lawyer Wendell Gauthier talked his colleagues into suing gunmakers, even though they weren’t deep pockets, because he argued the suit “fit with Gauthier’s notion of the plaintiffs bar as a de facto fourth branch of government, one that achieved regulation through litigation where legislation failed”. Yes, some litigators now see themselves as a de facto fourth branch of government — one that pays a whole lot better than the other three, isn’t subject to the disclosure rules and blind trusts we expect of Presidents, Senators and Chief Justices, does its unaccountable work behind the closed doors of settlement rooms from which the public is excluded, and, best of all, doesn’t face those pesky distractions known as “elections”.

Enjoy the Fourth anyway.

July 3 — “Anti-democratic, wrong, a feel-good solution.” The Boston Phoenix favors gun control, but it says city firearms lawsuits are “an end run around the legislative process“. That puts it in line with the Boston Globe (January 19), the Seattle Times, the Spokane Spokesman-Review (“a cynical grab for undeserved money”), and other papers.

UCLA law professor Eugene Volokh has just compiled a valuable list of knowledgeable law professors skeptical of the city gun cases and firearms torts generally. This is another issue on which the people at Reason magazine have put together an excellent webguide (“Suing Gun Makers“). The National Center for Policy Analysis weighs in with a report, “Suing Gun Manufacturers: Hazardous to Our Health“. Gun enthusiasts have put up a number of sites of which one of the most informative is straightforwardly titled‘s David Codrea expresses the sentiments of many gun owners about much-hyped “smart guns” and “child-proof locks“.

July 2 — Never say you’re sorry. The breast implant fiasco has brought home the lesson that our legal system really is capable of extracting billions of dollars on a completely spurious scientific theory, bankrupting a respected company, and then not even saying “I’m sorry”. Reason magazine’s new roundup is the best place to start for an overview of this disaster. The text of the National Institute of Medicine report refuting the lawyers’ claims is online.

Charles Krauthammer, writing in the Washington Post (“Class-Action Extortion”; link now dead), quoted George Mason law professor David Bernstein: “It would have been nice to have had this [study] seven billion dollars ago.” Your editor made similar points when he reviewed Marcia Angell’s powerful book, Science on Trial, in 1996. Prof. Bernstein runs a highly informative Implant Litigation Home Page. The classic journalistic treatment is Joseph Nocera’s 1995 Fortune article, “Fatal Litigation” (link now dead).

One reason reform is difficult is that the trial lawyers are among the best organized political forces in the country. The Civil Justice Association of California issues periodic reports on the millions that trial lawyers have funneled into campaigns in that state.

July 1, 1999 — launched. (About this site…)