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ARCHIVE -- DECEMBER 2001
(II)
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December 20 --
New York guardianship scandals. "Cronyism, politics,
and nepotism" run rife in New York's notorious system of court-appointed
guardianships,
a report released by the state's chief judge, Judith Kaye, has found after
a two-year investigation (see Jan. 12,
2000). "In one case, a lawyer appointed to be a guardian for
a woman who could not handle her own affairs billed her estate $850 after
he and an assistant took a cake and flowers to her nursing home on her
birthday. On another day, the lawyer and an employee took her out
for a walk and bought her an ice cream cone. Their bill was $1,275."
And much, much more (Jane Fritsch, "Guardianship Abuses Noted, Including
a $1,275 Ice Cream", New York Times, Dec.
4; Daniel Wise, "Investigation Finds 'Cronyism' Abounds in New York
Court Appointments", New York Law Journal, Dec. 5; "Report of the
Commission on Fiduciary Appointments", December;
"Fiduciary
Appointments in New York").
December 20 --
"Firms Hit Hard as Asbestos Claims Rise". L.A. Times
looks at asbestos litigation
and finds abuses and overreaching have gone so far that even some prominent
plaintiff's lawyers agree on the need for action. "An Oakland-based
attorney who has represented asbestos victims for 27 years is leading a
renegade faction of the plaintiffs' bar that has joined with many of the
corporations they sue in calling for limits on claims from people without
serious illnesses. 'It's too far gone to do anything else,' Steve
Kazan said. 'The asbestos companies are really cash cows that we should
care for and cultivate so we can milk them for years as we need to. But
I have colleagues who'd rather kill them, cut them up and put them on the
grill now. We'd all have a great time, but there are people who will
be hungry in five years.'" Over 15 years, now-bankrupt boilermaker Babcock
& Wilcox "spent $1.6 billion on 317,000 claims that took paralegals
five to 10 minutes each to prepare." (Lisa Girion, "Firms Hit Hard as Asbestos
Claims Rise", L.A. Times, Dec.
17). According to a letter sent by the Manville Trust to federal
judge Jack Weinstein on Dec. 2, asbestos claimants with cancer or other
grave illness are receiving reduced payments because "disproportionate
amount of Trust settlement dollars have gone to the least injured claimants
-- many with no discernible asbestos-related physical impairment whatsoever."
As usual, a key problem is the submission of questionable x-rays.
(Queena Sook Kim, "Asbestos Trust Says Assets Are Reduced As the Medically
Unimpaired File Claims", Wall Street Journal, Dec.
14)(online subscribers only).
December 20 --
Accused WTC bombing participant won't get $110K.
"In a decision that comments extensively on the war on terrorism, the 3rd
U.S. Circuit Court of Appeals overturned an award of more than $110,000
in attorney fees to a Palestinian man who successfully avoided deportation
after the government accused him of involvement in the 1993 bombing of
the World Trade Center ... the court found that the government's efforts
to deport Hany Mahmoud Kiareldeen were 'substantially justified' even though
it was ultimately unable to prove its case against him to the satisfaction
of the trial judge" by clear, convincing and unequivocal evidence.
(Shannon P. Duffy, "3rd Circuit Takes Away Attorney Fee Award in '93 WTC
Bombing Case", The Legal Intelligencer, Dec. 7).
December 19 --
Texas jury clears drugmaker in first Rezulin case. Back
to the drawing board for plaintiff's lawyers trying to take down the Warner-Lambert
division of Pfizer over side effects from its diabetes drug
Rezulin. "'It was a good drug. It helped a lot of people,' said one
juror, who asked not to be identified. 'There just wasn't enough
evidence to show the drug was defective.'" Attorney George Fleming
had demanded $25 million in damages and "emphasized Warner-Lambert's interest
in profits, flashing excerpts from internal memos before the jury." Lawyers
have many more Rezulin cases in the pipeline, so they'll be able to try
again and again before other juries. (Leigh Hopper, "Firm wins 1st
Rezulin suit in court", Houston Chronicle, Dec. 17). UpdateJan.
9-10, 2002: second trial goes against drugmaker with $43 million actual
damages.
December 19 --
"$3 million awarded in harassment". "A federal jury
Wednesday awarded a woman patrol officer for the Cook County Forest Preserve
District $3 million in damages -- $1 million more than her lawyer sought
from the district--for years of sexual harassment and retaliation on the
job ... One member of the five-woman, three-man jury said he didn't find
the harassment egregious but felt
a need to send the Forest Preserve District a message for its inaction
regarding Spina's complaints. 'The county didn't respond,' juror
Christopher Calgaro, an insurance claims supervisor from Homewood, said
after the verdict. 'They need to change, I mean catch up to the times.'"
(Matt O'Connor and Robert Becker, Chicago Tribune, Dec. 13).
December 19 --
Sued if you do dept.: language in the workplace. "Any
worker offended by the words of a single employee can sue his employer
for damages. Accordingly, many employers have adopted 'English-only'
rules for their employees, in order to better supervise employee comments.
Yet the EEOC also insists that employers can be sued by any employee who
takes offense to an 'English-only' policy." (Jim Boulet Jr., , "Catch-22
on Language", National Review Online, Nov.
14) (see Nov. 17, 1999).
December 18 --
False trail of missing lynx. "Federal and state wildlife
biologists planted false evidence of a rare cat species in two national
forests, officials told The Washington Times. Had the
deception not been discovered, the government likely would have banned
many forms of recreation and use of natural resources in the Gifford Pinchot
National Forest and Wenatchee National Forest in Washington state."
After a Forest Service employee blew the whistle on colleagues, officials
discovered that seven government employees, five from federal agencies
and two from Washington state, "planted three separate samples of Canadian
lynx hair on rubbing posts used to identify existence of the creatures
in the two national forests." The employees were given no serious discipline,
merely counseling and being taken off the lynx survey project, and federal
officials would not even release their names, "citing privacy concerns."
(Audrey Hudson, "Rare lynx hairs found in forests exposed as hoax", Washington
Times,
Dec. 17; InstaPundit, Dec.
17).
December 18 --
For client-chasers, daytime TV gets results. "Princeton,
N.J. lawyer John Sakson ... spends up to $80,000 a month soliciting potential
plaintiffs. Some of his advertising
is aimed at slip-and-fall and medical-malpractice victims. But these days
he's also trawling for much bigger fish -- plaintiffs for deep-pocket attacks
on big corporations, especially pharmaceutical
companies. ... the nation's largest legal- advertising agency ... says
one-third of its $20 million in legal billings comes from pharmaceutical
litigation ads, compared with maybe 1% a decade ago." Poor, unemployed
and disabled people disproportionately watch daytime TV: "Real-life judge
shows like Judge Mills Lane and Judge Judy are jackpots." (Michael Freedman,
"New Techniques in Ambulance Chasing", Forbes, Nov.
11).
December 18 --
Compulsory chapel for Minn. lawyers. "Since 1996, the
Minnesota Supreme Court has required attorneys to participate in its version
of diversity training -- called 'elimination of bias' education -- as a
condition of holding a license to practice law." The point is less
to regulate attorneys' conduct than to instill in them opinions that the
authorities consider correct about complex political and moral questions,
and many of the resulting seminars have had a tendentious, preachy anti-
white- male tone. (Katherine Kersten, "Court-ordered 'elimination
of bias' seminars threaten freedom of thought", Minneapolis Star-Tribune,
Dec. 12). See update Nov.
21, 2003 (lawyer challenges requirement).
December 17 --
"Suing the City for Sept. 11? Oh, Why Not?". Giuliani
or Bloomberg, New York City's tort crisis just keeps getting worse: "Settlements
cost the city $459 million that year [fiscal 2000], the latest for which
statistics are available. ... You might expect the litigation to slow down
as a hurt and financially damaged city looks to rebuild and weather a recession.
You would be wrong. ... Interviews with lawyers for the city and prospective
plaintiffs indicate that the attack will generate substantially more than
1,000 notices of claim." (Joyce Purnick, New York Times, Dec.
13).
December 17 --
Slouching toward Marin? Every conservative commentator
in the country, it seems, has by now told us where to pin the blame for
Tali-boy John Walker's descent into Islamic extremism: it's all because
of his permissive, religiously liberal suburban upbringing. Steve
Chapman offers a corrective to all the Culture War axe-grinding ("Is John
Walker a failure of liberalism?", Chicago Tribune, Dec. 16).
December 17 --
Daynard watch. It sure did take a long time, but
the British Medical Journal has finally admitted to its readers
that tobacco-baiting Northeastern University law prof Richard Daynard failed
to disclose competing interests in litigation to BMJ readers as
per the journal's policy (see our earlier
reports). The correction states that Daynard "has been involved
as counsel in suing tobacco companies and has received grants for research
into the use of litigation to control tobacco use". Because
this formulation is so terse and artfully worded, however, readers in the
United Kingdom (where lawyers are generally not allowed to claim percentage
stakes in litigation) may not realize that the competing interest Daynard
concealed consisted not in routine hourly fees but a contingency stake
that, per his claims, may top $100 million ("Correction: Tobacco litigation
worldwide", Oct.
6). Connecticut activist Martha Perske deserves the credit for
getting the BMJ to semi-'fess up. Meanwhile, Daynard's division-
of- the- spoils suit against former anti-tobacco colleagues Ron Motley
and Richard Scruggs "is providing an inside look at the way lawyers finagled
fees in the tobacco litigation -- and the lengths they'll go to protect
their hoard." (Elizabeth Preis, "A Piece of the Action", The American
Lawyer, Sept. 7).
December 15-16 --
Criminal defense attorneys, doing what they do best.
"While it may seem like the ultimate smoking gun, defense lawyers said
there would be ways to try to undercut the videotape of Osama bin Laden
if he were to go on trial for the Sept. 11 terrorist attacks. ... 'I would
argue as a defense lawyer that the tape is puffery, celebration and bragging,'
said Robert E. Precht, director of public interest law at the University
of Michigan Law School who was a defense lawyer in the trial of the World
Trade Center bombers in 1994' ... several defense lawyers suggested that
a creative defense team might claim that the damning translation from Arabic
was misleading or that the tape was doctored. 'The reality is you
can make a tampering argument with any tape,' Barry I. Slotnick, a New
York defense lawyer, said." And: "with tapes that are transcribed
from a different language, there are interpreters you can find who can
come up with a different transcript," offered New York's Benjamin Brafman.
Then there'd be attacks on the tape's admissibility, since "it was not
clear how the government obtained it", which might in turn force the CIA
to reveal sensitive information -- great tactical leverage.
(William Glaberson, "Defense Lawyers See Ways to Attack Tape, if Not Win",
New York Times, Dec.
15). On the role of the O.J. Simpson case in convincing much
of the American public that our court system cannot be trusted to deliver
even rough justice in a high-profile criminal trial, see, among many others,
Glenn Reynolds, InstaPundit.com, Dec.
13.
December 15-16 --
Updates. Further developments in cases that were
bound to develop further:
* The Canadian Transportation
Agency has ruled that obesity in itself is not a disability
and that airlines are not therefore
obliged by law to offer extra seats to severely overweight passengers,
although it suggested they consider doing so voluntarily (see June
7, Dec. 20, 2000)("Canadian tribunal
rules obesity is not a disability", Reuters/FindLaw, Dec. 13).
* In New South Wales, Australia, an appeals court has ordered
a new trial after finding that an award of almost $3 million (Aust.) was
"excessively high" in the case of a man who sued over having been subjected
to strapping as punishment twice at a Catholic school
seventeen years ago (see Feb. 20). (Ellen
Connolly, "Compensation takes a caning as $3m payment revoked", Sydney
Morning
Herald, Nov. 1).
* Sitting en banc, the Ninth Circuit has held that grabbing
the interest on clients' trust accounts at law firms to finance poverty
law does not entail any "taking" for which the clients need be compensated;
the 7-4 decision comes over a dissent by Judge Alex Kozinski, whose earlier
opinion for a three-judge panel (see Jan. 31)
the court reversed. The Ninth now officially disagrees with the Fifth
Circuit (so what else is new?) on this issue, and the circuit split may
attract the attention of the U.S. Supreme Court. The court did not
resolve the question of whether such programs violate the First Amendment.
(Jason Hoppin, "IOLTA: 9th Circuit Says IOLTA Programs OK", The
Recorder, Nov. 15) (opinion
in PDF format courtesy FindLaw).
* "Five shopkeepers prosecuted for weighing food in British Imperial
measurements instead of the metric system demanded by European law appealed
to London's High Court Tuesday to quash their convictions." After
greengrocer Steven Thoburn of Sunderland, the original "metric martyr",
was brought up on charges for weighing bananas in pounds (see Jan.
22, April 11), authorities collared four
more shopkeepers who were using the forbidden measures to weigh such items
as mackerel
and pumpkins. Some 200 protesters demonstrated outside the court
in support of the merchants. ("Shopkeepers Battle for Right to Use
British Weight" , Reuters/Yahoo, Nov. 23). Update Feb.
20, 2002: they lose High Court appeal.
December 13-14 --
"Father seeks $1.5 million after son misses varsity spot".
By reader acclaim: "The father of a high school sophomore seeks $1.5 million
in damages and the dismissal of the school's
basketball coach after his son did not make the varsity. Lynn Rubin
sued the New Haven Unified School District on Nov. 27 because his son,
Jawaan Rubin, was told to return to the junior varsity after being asked
to try out for varsity." The youngster attends James Logan High School
in Union City, Calif. (AP/SFGate.com, Dec.
11; Contra Costa Times, Dec. 12).
December 13-14 --
SCTLA's homegrown Chomsky. We're familiar with the
tendency of politically active injury lawyers to espouse opinions farther
to the left than those of the communities they live in. Still,
we're a bit amazed at a commentary that appeared last month on CommonDreams.org,
a left-leaning website that has vehemently opposed U.S. military action
before and after September 11. The commentary, in headlong Noam Chomsky/Robert
Fisk rant mode, claims that "the United States is making war on children"
in its efforts against the Taliban and al Qaeda, declares that the American
military is delivering a "message of greed and violence" to Afghanis, and
even puts scare quotes around the word "evil-doers" in referring to those
responsible for Sept. 11. The screed's author? Columbia, S.C.
plaintiff's lawyer Tom Turnipseed, a well-known figure in his state's Democratic
politics (most recently as its
1998 attorney general candidate; he's now mulling a run for U.S. Senate)
who's often described as a leader of the state party's progressive wing.
Can this sort of thing really play with the voting public and in the jury
box in a conservative, pro-military state like S.C.?
The "message of greed" that Turnipseed claims the U.S. is conveying
to Afghanis, incidentally, consists of our offer of $25 million for the
apprehension of Osama bin Laden. Presumably this is quite different
from the message conveyed by Turnipseed's own web site, which assures prospective
clients that he has resolved numerous cases for sums in excess of $1 million.
("Broadcasting and Bombing", CommonDreams.org, Nov.
22; Turnipseed's law firm website
and "mission"; via
Matt
Welch). (DURABLE LINK)
December 13-14 --
Competitor can file RICO suit over hiring of illegal aliens.
A really odd one from the Second Circuit: the court says a commercial cleaning
service in Hartford has standing to sue a competitor for racketeering under
federal law over the second firm's alleged hiring of undocumented workers.
If the decision stands, expect all sorts of new business-on-business litigation,
underscoring the need to roll back RICO's many overexpansive provisions,
or repeal the law entirely. (Elizabeth Amon, "New RICO Target: Hiring
Illegal Aliens", National Law Journal, Nov. 27). Update:
see Point Of Law, Jul.
12, 2004.
December 13-14 --
Segway, the super-wheelchair and the FDA. The much-publicized
new mobility device, known variously as "It", "Ginger" and the "Segway",
originated as a spinoff of a quest for a truly powerful and versatile wheelchair
that would allow disabled users to
climb and descend stairs and curbs, traverse rough terrain and surmount
other kinds of barriers. The IBot wheelchair project is still considered
extremely promising, but progress on it has been less rapid than hoped:
genuine safety concerns are part of the problem, but they're magnified
by various legal worries including the arduous process of getting the Food
and Drug Administration to approve a new "medical device". Meanwhile
some disabled persons, frustrated at seeing years of their lives slip by
without the yearned-for mobility advance, are now considering hacking the
"Segway" to meet their needs. (Michelle Delio, "What About Kamen's
Other Machine?", Wired News, Dec.
7).
As for the Segway itself: "No matter how inherently safe Segways may
be, someone, somewhere is going to kill himself on one. 'It's inevitable,'
says Gary Bridge, Segway's marketing chief. 'I dread that day.'
Never mind that people die every day on bicycles, in crosswalks, on skateboards,
in cars. The Segway is the newest new
thing, and nothing does more to set hearts afire on the contingency-fee
bar. 'There are some very deep pockets around this thing,' remarks
Andy Grove. 'I fear this could be a litigation lightning rod.'" (John
Heilemann, "Reinventing the wheel", Time, Dec.
2 (see p.
4)). Update: see Aug.
1, 2002.
December 13-14 --
Menace of office-park geese. We knew they were sinister:
an Illinois panel has approved a $17,000 settlement for Aramark Corp. deliveryman
Nolan Lett, who was attacked by Canada geese on his employer's property
in suburban Oak Brook, and filed a workers' comp claim "under the theory
that Aramark had a duty to warn employees of the dangers of the geese because
the building was in an area that attracted them." Lett broke his
wrist trying to fend off the pesky creatures. ("Workers' compensation:
Victim of wild goose attack settles for $17,000", National Law Journal,
Oct. 22). (DURABLE LINK)
December 12 --
By reader acclaim: "Teen hit by train while asleep on tracks sues railroad".
Cameron Clapp of Grover Beach, Calif. has sued the Union Pacific railroad
and its conductor and engineer, saying that they should have sounded the
train's horn or bell as well as engaged the emergency brake when they saw
him asleep on the tracks. Clapp's blood alcohol level after the accident
was measured at .229, nearly three times the permissible level for operating
a motor vehicle. "According to Grover Beach police, the engineer
and conductor did not sound the horn because they were focused on activating
the train’s emergency brakes." Notwithstanding his client's having
been passed out at the
time, Clapp’s attorney, Jim Murphy, claims that 'These horns are enormously
powerful and can literally* wake the dead.'" (Leila Knox, San Luis
Obispo Tribune, Dec. 8) (*usage
note)
December 12 --
A bargain at $700/hour. New York law firms Weil,
Gotshal and Manges and Wachtell, Lipton, Rosen & Katz "have each asked
for a $1 million bonus, on top of their regular rates and costs, as an
'enhancement'" for advising United Companies Financial Corp. of Baton Rouge,
La. and its creditors during its bankruptcy. Under bankruptcy law,
judges must approve the payment of fees in such cases. "Ultimately,
any such fees come out of the estate of the debtor, leaving less money
to go around. ... Weil, Gotshal's [attorney Harvey] Miller says that while
shareholders were wiped out, his firm, which represented the debtor, still
deserves a bonus for 'creating value.' Weil is seeking $7.3 million
in fees in the case. But he says that hourly rates do not always
do justice to a lawyer's contributions. He considers his $700 hourly
rate, which he increased from $675 over the summer, 'a bargain.'"
"In another case, a small firm, Dann Pecar Newman & Kleiman of Indianapolis,
has requested $5 million in fees for representing consumers in a two-year-old
Chapter 11 proceeding against a defunct satellite-dish financing unit of
Houston-based American General Corp. The fee request includes a $3
million bonus, which would put the 22-lawyer firm's effective rate in the
case at roughly $650 an hour -- on a par with top New York firms.
The consumers ultimately collected about $28 million from the company.
David Kleiman, a partner, says he considers the case more akin to a far-flung
class-action suit, where courts have long rewarded lawyers a multiple of
their hourly rates. The fees were 'remarkably low,' he says." (Richard
B. Schmitt, "Bankruptcy Lawyers Seek Big 'Enhancement' Bonuses", Wall
Street Journal, Nov.
1 (online subscribers only)).
December 12 --
Ready, aim ... consult counsel. It seems that situation
described by Seymour Hersh in his New Yorker story a few weeks back
(see Oct. 19) -- of U.S. forces hesitating
to destroy a hostile target until they could consult a Pentagon lawyer
-- is not as unusual as might be assumed. "To many outside of military
life, the idea of a judge advocate whispering in the ear of a four-star
general [during mission planning and in battlefield decisionmaking] is
startling. But nowadays it is standard procedure," writes Vanessa
Blum in Legal Times. "Modern judge advocates literally sit
at the side of commanders, drafting rules of engagement, weighing in on
targeting decisions, and even helping to prepare special operations forces
for risky missions." ("JAG Goes to War", Nov.
15).
December 11 --
"Lawyers on trial". In what was originally planned
as a cover story, U.S. News in this week's issue asks: "Are lawyers
out of control? Or, more important: Has litigation become more of a burden
to society than a safeguard?". Our editor, who provided considerable
assistance (readers of this site will recognize many stories), is quoted.
(Pamela Sherrid, U.S. News, Dec.
17)
(links to sidebars on class
action recruitment, asbestos,
forum-shopping,
shareholder
suits). Also, an account of a recusal controversy in a New York
securities-law case quotes our editor to the effect that lawyers are taking
a risk when they demand that judges recuse themselves, since such demands
tend to annoy not only the target judge but also his colleagues on the
bench. (Heidi Moore, "IPO Recusal Motion Backfires", The Deal,
Dec. 7).
December 11 --
"Wrongful life" comes to France. A court in Paris
has ruled that some disabled children can sue doctors for not having aborted
them, a development that OpinionJournal.com's "Best of the Web"
takes as evidence of specifically French barbarity, apparently unaware
that American lawyers have been advancing such theories for years in our
courts with some success (see Aug. 22 &
other
links). (Nanette van der Laan, "France debates right not to be
born", Christian Science Monitor, Dec.
7; James Taranto, "Best of the Web", Dec.
10 (last item)). Update Jan.
9-10, 2002: French doctors stage job action in protest.
December 11 --KPMG.
This international services firm (no longer affiliated with the consulting
firm of the same name) seems to think it has a legal right to prevent people
from linking to its website
without its permission, so of course any number of websites are doing just
that. Like this: KPMG. Actually,
our advice is to skip the company's tedious site and just check out the
Wired
News account of the controversy: Farhad Manjoo, "Big Stink Over a Simple
Link", Dec.
6. (& see Blogdex)
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