August 10 – Coffee-spill suits meet ADA. In Vallejo, California, a woman is suing McDonald’s, “saying she suffered second-degree burns when a handicapped employee at a drive-thru window dropped a large cup of hot coffee in her lap. …The suit said that the handicapped employee couldn’t grip the cardboard tray and was instead trying to balance it on top of her hands and forearms when she dumped the coffee on Aug. 25, 1999,” scalding Karen Muth, whose lawyer, Dan Ryan, told a local newspaper that she’s entitled to between $400,000 and $500,000. “We recognize that there’s an Americans with Disabilities Act, but that doesn’t give them the right to sacrifice the safety of their customers,” he said. (“Woman sues McDonald’s over spilled coffee”, AP/SFGate, Aug. 7). And British solicitors have organized 26 spill complainants into a group suit against the same chain over the overly piping nature of its beverages: “Hot coffee, hot tea and hot water are at the centre of this case. We are alleging that they are too hot,” said Malcolm Johnson of Steel and Shamash, a London law firm. (“McDonald’s faces British hot drink lawsuit”, Reuters/FindLaw, Aug. 2) (more on hot beverage suits: July 18; “Firing Squad”, Reason, May 1999 (scroll halfway down in piece); and resulting letters exchange, Aug./Sept. 1999 (scroll to last items), April 4).
August 10 – “Imperfect laws add to danger of perfect storms”. “In an ill-advised attempt to prevent overfishing in the [Gulf of Mexico], the government reduced the red snapper season to a very short nine-day opening” — a “snapper derby”. Unfortunately, menacing weather came up during that brief nine-day window, and snappermen were left with a choice of which risk to run, physical or economic. Most went to sea, “and at least two boats encountered life-threatening conditions. One boat was lost in raging seas off Louisiana.” Alaska suffered a series of avoidable accidents and fatalities under a similar “halibut derby” until it switched to a better system: the sort of individual transferable quotas often recommended by economists (Peter Emerson and Felix Cox, Dallas Morning News, July 25).
August 10 – “Justice, not plunder”. We thought we were hard-liners on the topic of excessive lawyers’ fees, but Washington Post columnist Robert Samuelson goes us one better by proposing a maximum limit of $1 million or $2 million a year as the most anyone could earn from lawyering in a year. It might sound less outlandish if we went back to the old idea of lawyers as “officers of the court” — i.e., a species of civil servants, even if more fancily dressed. (July 27).
August 10 – Welcome readers (especially Daves). Among the diverse sites we’ve noticed linking to us are: Dave Dufour’s site, from Elkhart, Indiana; gasdetection.com, website of “Interscan Corporation, manufacturer of toxic gas detection systems”, which names us “Mike’s Cool Site of the Week”; Bonehead of the Day Award (citing us for material, not naming us as the awardee!); Miss Liberty Film & TV World, Jon Osborne’s newsletter reporting on film and television events of libertarian interest; Dave’s Corner, published by a different Dave from the one above; Peter Brimelow’s vdare.org, with a line-up of authors critical of immigration and multiculturalism; Big Eye — Alternate News Center, assembling many anti-establishment links; Hittman Chronicle, by yet a third Dave, Dave Hitt, whose July number takes a caustic view of the recent Florida tobacco verdict; Adirondacks2000.com (we’re their current “Featured Internet Site”); and Wrisley.com, “An Electronic Magazine for Thinkers” out of South Carolina.
August 8-9 – Senator Lieberman: a sampler. “Miracles happen,” said the Senator on learning that he was going to be the Democratic pick for VP. (Ron Fournier, “Gore Picks Sen. Lieberman for VP”, Washington Post, Aug. 7). As far as legal reform goes, we’d have to agree — for him to be on the same ticket with Al Gore counts as nothing short of a miracle:
“In vetoing this bipartisan product liability reform, the President went against his own White House Conference on Small Business and members of his own party. … Connecticut Democrat Sen. Joseph Lieberman said, ‘the President is dead wrong about this bill.’ And no less a journalistic authority than the Washington Post called the President’s decision to veto the bill, ‘a terrible one.'” (Rep. Dave Hobson (R-Ohio) newsletter, May 3, 1996)
“In complaining about trial lawyers’ influence on the liability bill, Sen. Joseph Lieberman, D-Conn., told the Wall Street Journal: ‘This is a remarkable story of a small group of people who are deeply invested in the status quo who have worked the system very effectively and have had a disproportionate effect.'” (Dallas Morning News, March 28, 1996, available on Nexis, but not online)
“Mr. President, in my view, you can add the civil justice system to the list of fundamental institutions in our country that are broken and in need of repair. … Ultimately it is the consumers who suffer most from the status quo. …
“I did not always support a national or Federal approach to product liability reform or tort reform generally … What changed my mind was listening to people in Connecticut. …
“I would say that our current medical malpractice system is a stealth contributor to the high cost of health care. … There is a well regarded consulting firm called Lewin-VHI. They have stated that hospital charges for defensive medicine were as high as $25 billion in 1991. That is an enormous figure. Basically what they are saying is that as much as $25 billion of the costs — this is not paid by strangers out there, this is paid by each of us in our health insurance premiums — is the result not of medical necessity but because of defensive practice occasioned by the existing medical malpractice legal system.” (Lieberman floor statement, April 27, 1995, reprinted by Health Care Liability Alliance).
When the Senate (temporarily) voted by a one-vote margin to curb the gargantuan fees obtained by trial lawyers for representing states in the tobacco-Medicaid litigation, a step later blocked by opponents, Lieberman was one of four Democrats to buck the party’s trial lawyer supporters by voting yes (Action on Smoking and Health, June 17, 1998, citing New York Times and C-SPAN).
With Sen. Spence Abraham (R-Mich.), Lieberman introduced the proposed Small Business Liability Reform Act of 1999, which would limit the exposure of small businesses to punitive damages and joint liability for non-economic damages in most cases, limit the application of joint and several liability to small businesses, and make it harder to add wholesalers and retailers to lawsuits against manufacturers. The bill has had trouble attracting support from other Democrats, however (World Floor Covering Association website).
With Senator Mitch McConnell (R-Ky.) and Rep. Dick Armey (R-Tex.), Lieberman introduced the Auto Choice Reform Act, bitterly opposed by trial lawyers, which would encourage car owners to opt out from the “pain and suffering” lottery in exchange for lower rates. “According to Joseph Lieberman, a co-sponsor, ‘our auto insurance and compensation laws violate the cardinal rule I think those of us in the business legislating have a duty to follow: to draft our laws to encourage people to minimize their disputes, and to encourage those who do have disputes to resolve them as efficiently, as economically, and as quickly as possible.'” — Bionomics Institute, “Driving Them Crazy”, August 15, 1997, citing Congressional Record, April 22, 1997. Sen. Daniel Patrick Moynihan (D-N.Y.) also supports the idea (Dan Miller, “Auto Choice: Relief for Businesses & Consumers”, Joint Economic Committee).
“Jim Kennedy, press aide for Lieberman, indicated that Nader, a lawyer, is watching out for the interests of his profession. ‘What he’s left out is the trial lawyers’ lobby which is bankrolling the opposition. They have the most to lose and they are the ones making money out of the system,’ he said.” (quoted in States News Service, May 3, 1995, after Ralph Nader attacked the Senator for sponsoring liability reform; available on Nexis, but not online).
Addendum: Although a strong supporter of gun control in general, Lieberman joined Republicans and a minority of Democrats on a 1992 procedural vote in support of preventing the District of Columbia from using liability lawsuits as a means toward that end. (S. 3076, vote #152, July 27, 1992) (DURABLE LINK)
August 8-9 – Break in Florida tobacco-Medicaid fee case? Harvard professor Alan Dershowitz says he’s determined to press suit against the Florida lawyers who extracted $3.4 billion in legal fees in the state’s tobacco-Medicaid settlement, saying they promised him 1 percent, or $ 34 million (see July 17). Dershowitz says he’s acting as “a pro bono who intends to give most of the money to charities.” “Where does he get his numbers? They’re preposterous. He has an ego the size of a mountain,” said an attorney for the lawyer-defendants. “Suing me is a serious mistake,” said Pensacola lawyer Robert Kerrigan, of Dershowitz’s action; we’d call that tone intimidating, under the circumstances. “These guys have chutzpah,” Dershowitz said. “I don’t care how rich these guys are or how many judges’ campaigns [Robert] Montgomery contributes to, I’m fighting back.” And: “Now the public can finally see the inside of the cigarette lawyers industry.” We can’t wait, since the record-breaking Florida fee haul has been shrouded in much secrecy up to now (see April 12) (Cindy Krischer Goodman, “Harvard prof suing lawyers over tobacco settlement”, Miami Herald, Aug. 2).
August 4-7 – Republican convention finale. No mention of legal reform in W’s acceptance speech, but the topic did make its way into the earlier remarks from the podium by Jan Bullock, widow of Democratic Lt. Gov. Bob Bullock (gopconvention.com).
August 4-7 – Now that’s bread. A San Francisco jury has awarded $121 million in punitive damages, atop $11 million in compensatory damages, to 21 black workers at an Interstate Bakeries plant (see July 10). Among the charges were hostile work environment, being subjected to racial slurs, and lack of promotions; one worker testified that he hadn’t been allowed to take Martin Luther King Day off although white workers had been allowed time off to watch the San Francisco Giants play. The company is known for making Wonder bread and Hostess snack cakes. (“‘Wonder Bread’ Workers Get $121 Million in Lawsuit “, Reuters/Yahoo, Aug. 3; “Jury Awards Workers in Bread Case”, AP/FindLaw, July 31) Update: judge reduces award by $97 million (see Oct. 10).
August 4-7 – Update: Hirschfeld convicted, sentenced. Eccentric New York City real estate developer, politician and public figure Abe Hirschfeld has been sentenced to one to three years in prison after being convicted on charges of trying to have his business partner killed. Hirschfeld still faces separate retrial on tax fraud charges, following a jury deadlock after which a mistrial was declared; in that case, Hirschfeld created a sensation by handing each juror a check for $2,500, a step apparently not in violation of any court rule at that time (see Sept. 13, Sept. 17, 1999). The judge in the murder-for-hire case, however, explicitly barred Hirschfeld from bestowing any gratuities on jurors after the case’s conclusion. (Samuel Maull, “Real estate mogul gets sentence of 1 to 3 years”, Phila. Inquirer, Aug. 2; same, Phila. Daily News.)
August 4-7 – “Ease up on kids”. Salt Lake Tribune criticizes school safety hysteria and the resort to suspension or expulsion for behavior that once would have merited a trip to the principal’s office. “Utah’s Legislature passed a law this year requiring that secondary education students be expelled for a year if they bring even a fake weapon to school, and it allows no review process through which real threats can be separated from pranks.” (editorial, July 28)
August 4-7 – Losers should pay. Environmental groups’ use of the courts to seek delays in large-scale development projects — which can inflict huge financial losses through the costs of delay even if the challenges eventually fail on the merits — points up the case for loser-pays principles, including bonding where appropriate, as in a recent Northern California case, argues columnist and Hoover Institution scholar Thomas Sowell. “Of all the ways of making decisions, one of the most ridiculous is putting decisions in the hands of third parties who pay no price for being wrong.” (“Costs and Decisions”, TownHall.com, Aug. 2).
August 4-7 – Take that, .hk and .tw. A Chinese law firm, suing on behalf of a dissatisfied consumer, has hauled Japanese-owned cameramaker Canon into court because some of its subsidiaries’ promotional material, including CD packaging and a website, list Hong Kong and Taiwan as separate “countries” in which it does business. Although Taiwanese have lived for more than fifty years under a government different from that of mainland China, Beijing’s official posture is still that the island is part of one China. Canon (Hong Kong) has apologized in newspaper ads, but the Chongqing Hezong Law Firm says its explanation is unconvincing. (“Canon (under) fire: China sues over Web site’s calling Hong Kong, Taiwan countries”, China Online, Aug. 1)
August 3 – Jury orders “Big Chocolate” to pay $135 billion to obese consumers. Lawyers charged Hershey’s with knowingly adding nuts to lure helpless chocoholic buyers. Keep repeating to yourself: it’s just a parody. … it’s just a parody (for now). … it’s just a parody. The Onion, August 2 (via Arts & Letters Daily). Plus: recently launched legal spoof site, ScaldingCoffee.com, profiles not-quite-true courtroom controversies such as the one over “Tapster”, the new system that allows Internet sharing of dance step patterns, much to the economic detriment of Arthur Murray franchisees (July) (latest).
August 3 – Wednesday’s GOP and legal reform. How many distinct references to litigation reform have come up in the Republican convention proceedings? We counted four on Wednesday evening (all favorable): they came in speeches by California small business owner Hector Barreto, dotcom exec Christina Jones, and, of course, vice presidential nominee Dick Cheney, who praised Gov. George W. Bush for his success in passing legal reform (“Today the legal system [in Texas] serves all the people, not just the trial lawyers.”) Then there was the comment made by the representative of the state of Washington when its turn came in the roll call: in a pointed reference to the Microsoft case, she said the Evergreen State was in favor of “innovation, not litigation”. If you spotted other references, let us know.
August 3 – CSE event in Philly. Citizens for a Sound Economy, which has been calling attention on the campaign trail to legal-system excesses, will be holding an event in Philadelphia today featuring its giant-fish mascot “Sharkman,” a “Who Wants to be a Trial Lawyer Billionaire” contest and more. The purpose is to honor lawmakers and other officials from Alabama, Illinois, Texas, and Florida who’ve stood up to the litigation lobby in their states. Specifics: Thurs. Aug. 3, 2-5 p.m., Maui Entertainment Complex, Pier 53 N. Delaware Ave., Phila. (CSE website). See you there? Adds the CSE website: “On Sunday, Senator [John] McCain [R-Ariz.] invited Sharkman and CSE staff to attend a reception with all of Senator McCain’s national delegates. Senator McCain grew fond of Sharkman during the primaries, often inviting him on stage in New Hampshire and South Carolina.”
August 3 – And what were the damages? An unemployed 56-year-old Los Angeles machinist named Cornell Zachary says he was the victim of a phone-number mixup in which the British pop group Duran Duran mistakenly posted his phone number on the Internet “as the one to call for T-shirts, souvenirs and tickets.” He then was kept running to the phone day and night by a vast number of wrong-number calls from fans of the group. And what were the damages, you ask — since without damages a lawsuit isn’t much of a lawsuit? Well, Zachary’s lawsuit, filed last week, claims he suffered ‘life-threatening high blood pressure episodes,’ nerve damage, sleep disturbance, and permanent health problems … ‘They had me to the point where my doctor told me I could have a stroke.'” Notwithstanding that dire medical advisory, he didn’t ask the phone company to change his number: “I don’t think that I have to change my number,”‘ he explained. “I didn’t make the mistake. I had had the number already over a year.” His suit also asks punitive and exemplary damages and attorneys’ fees. (Sarah Tippit, “L.A. Man Sues Duran Duran for Posting Number on Web”, Yahoo/Reuters, Aug. 1).
August 2 – Tinkerbell trademark tussle. On Friday in federal court in Scranton, Penn., a company called New Tinkerbell Inc. of New York sued the Walt Disney Company for trademark infringement of the registered trademark “Tinkerbell”, of which it says it and its affiliates are the exclusive lawful owners and licensees. The gossamer-winged character, whose continued existence is made possible only by observers’ willingness to suspend their rational disbelief in her (which already gives her a lot in common with many phenomena of the legal system) dates back to J. M. Barrie’s children’s classic Peter Pan, which has now fallen out of copyright and into the public domain, but the New York company says that it obtained the rights to use her name in commerce in 1952, a year before Disney released its hugely popular movie Peter Pan. There followed a line of “Tinkerbell-emblazoned products for children,” including shampoos, glitter, hair bands, “scrunchies,” umbrellas, sunglasses, pencil kits, and many more; for a while, the complaint alleges, Disney itself bought and resold New Tinkerbell items in its stores, but then decided it wanted to enter the field itself, and has since used on its products such marks as “Tinkerbell, Tinker Bell, Tink, or a proxy for a female fairy.” The suit accuses Disney of unlawful use of “a female fairy character in interstate commerce”. (Roger Parloff, “Fairy Serious Business: Disney Accused of Misappropriating Tinkerbell”, Inside.com, July 31)
August 2 – Judge rebukes EPA enforcement tactics. “In a harsh rebuke to the federal Environmental Protection Agency‘s pursuit of criminal polluters, a judge has ruled the government unnecessarily harassed a Northbridge mill owner and pursued a case against him even though it didn’t have any credible evidence.” Following up on a tip from a former employee of the mill, which makes wire mesh used for lobster traps, a “virtual ‘SWAT team’ consisting of 21 EPA law enforcement officers and agents, many of whom were armed, stormed the [mill] facility to conduct pH samplings. They vigorously interrogated and videotaped employees, causing them great distress,'” wrote federal judge Nathaniel Gorton. Moreover, EPA in obtaining a search warrant apparently concealed evidence from its own testing indicating that the plant’s wastewater emissions may not have breached federal standards. “The case marks the first time in the region that a judge has ruled in favor of an application of the Hyde Amendment, a three-year-old federal law that allows an exonerated defendant to seek legal fees from the government if the criminal prosecution was ‘frivolous, in bad faith or vexatious.'” (David Armstrong, “US judge rules EPA harassed mill owner”, Boston Globe, Aug. 1).
August 2 – Clinton before trial lawyers: a footnote. Press reports had been contradictory about whether or not prospective disbaree Bill Clinton in his Sunday speech became the first sitting president ever to address the Association of Trial Lawyers of America (see July 31, Aug. 1). Molly McDonough of American Lawyer Media appears to clear up the discrepancy: the only other president to visit the organization was Lyndon Johnson in 1964, but he spoke to ATLA’s board of directors, which leaves Clinton as the first to appear before the organization’s general membership (“Clinton Addresses Trial Lawyers at Annual Bash”, Aug. 1).
August 2 – “Mugging victim ‘stupid,’ judge says”. A judge in Winnipeg, Canada, has caused an outcry by acquitting an alleged mugger and then lambasting the complainant for openly carrying money in a dangerous neighborhood. “‘What I am satisfied is that we have a very stupid civilian, who admits that he was stupid,’ said [Judge Charles] Rubin, who interrupted the Crown’s closing submission Tuesday to deliver his verdict. ‘If you walk around jingling money in your hand . . . it’s like walking in the wolf enclosure at the city zoo with a pound of ground beef in your hand. And it’s almost the same type of predators you’re going to find out there.'” The judge also advised the complainant to walk in future in the middle of the street for safety, rather than on the sidewalk. (Mike McIntyre, Winnipeg Free Press, July 20).
August 1 – Clinton’s trial-lawyer speech, cont’d. In his partisan-fangs-bared speech Sunday to the Association of Trial Lawyers of America, the president brought up the topic of vacant seats on the Fourth Circuit U.S. Court of Appeals, and accused Republican senators of deliberately not confirming black judicial nominees he’s proposed to that court simply because those nominees are black — which is to say, accused them of engaging in racism. (Neil A. Lewis, “President Criticizes G.O.P. for Delaying Judicial Votes”, New York Times, July 31). As Smarter Times points out (July 31), yesterday’s New York Times reported these rather incendiary charges and yet omitted to include any sort of response to them from Republican senators or anyone else, simply allowing Clinton to make them uncontradicted. For those interested in the issue on other than a demagogic basis, Ramesh Ponnuru at National Review Online wrote a piece July 17 adducing a sufficiency of non-racist reasons why senators might be leaving the seats vacant (other coverage in USA Today, New York Post).
However, the Times partially redeems itself by some original reporting on the exact nature of the differences between Democratic candidate Al Gore and Green Party candidate Ralph Nader. It reported that Nader, “who has been closely allied with trial lawyers on the issue of civil litigation rules, said Mr. Gore was allowing the president to take the heat of associating with the lawyers while he was reaping the benefits. ‘He’s just slinking around taking money like crazy from these guys, and at the same time he’s not really standing up for the civil justice system,'” said Ralph, who himself has steered a different course from Gore at least as to the latter course of conduct, since he’s known for his vocal defense of virtually every trial lawyer depredation yet invented.
As AP reports: “Common Cause, a non-partisan group that advocates campaign finance reform, calculates that trial lawyers gave $2.7 million to Democrats in 1999. That is about 1,000 times more than trial lawyers donated to Republicans last year, and twice the amount donated in the same period during the last election cycle.” (Anne Gearan, “GOP keeping minority judges off bench, Clinton says”, AP/Bergen County (N.J.) Record, July 31). However, you would be wrong if you imagine that Common Cause, as “a non-partisan group that advocates campaign finance reform”, might see cause for concern that those donations might not entirely further the public interest. After all, Common Cause recently named as its president Scott Harshbarger, former Democratic attorney general of Massachusetts, who in that office worked closely with trial lawyers and in fact bestowed on them a tobacco representation agreement which brought them an unprecedented fee bonanza. And now Mr. Harshbarger, newly speaking for Common Cause and quoted in the Times piece, ardently defends the particular special interest he has reason to know best, saying massive trial lawyer donations are no more than an appropriate way of leveling the playing field given that those whom the lawyers sue — which includes pretty much every other group in the economy — also donate a lot to politicians. In the new Common Cause universe, it seems, some special-interest influences on politicians are a lot more objectionable than others.
August 1 – “Lawsuits to fit any occasion”. According to the L.A. Times, a 43-year-old local attorney has been involved in 82 lawsuits on his own behalf since 1982. Robe rt W. Hirsh “sued the single mother he hired to stain the woodwork in his Hancock Park Tudor-style home, claiming she left some streaks on the wood. He sued his stockbroker for not getting him into Microsoft stock.” He sued a dissatisfied client to demand his fee, and then, when an arbitration panel instead awarded the client $25,000 against him, sued the lawyers who had represented him in the arbitration. “Hirsh even sued the synagogue where he was married, claiming that the religious elders had botched the catering of his wedding by, among other things, serving his guests cold vegetables and not giving his family all the leftovers. ‘Either he has the worst luck in the world, or he likes to sue,'” said Loyola law prof Laurie Levenson. Many of the suits have succeeded in bringing him settlements, but Hirsh (who also disputes the number of cases in which his critics say he has been involved) now faces a proceeding under California’s rarely used court rules against vexatious litigants, which could curb his activities in future. (“Davan Maharaj, “Lawsuits to Fit Any Occasion”. Los Angeles Times, July 29).
August 1 – Movie caption trial begins. Trial set to begin this week in a closely watched lawsuit in which Portland, Oregon, deaf activists have charged movie theater proprietors with violating the Americans with Disabilities Act because they haven’t installed elaborate captioning systems throughout the theaters (Kendra Mayfield, “Films Look to Captioned Audience”, Wired News, July 28). Meanwhile, the recording industry is concerned that a system installed to help the hearing-impaired at live concerts has become a prime vehicle for bootleggers to obtain concert tapes of unusually high quality for pirate sale; the ADA requires arenas to offer the assistive listening devices (Larry McShane, “Bootleggers Use Hear Aid to Record”, Yahoo/AP, July 30). And given the ADA’s many unintended consequences, outrageous results and manifest failures, Chicago Tribune columnist Steve Chapman wonders why tenth-anniversary press coverage of the act’s passage took such an overwhelmingly celebratory tone; his column quotes our editor (“The Other Side of the Disabled Rights Law”, July 30).
August 18-20 – Why the bad guys can’t stand John Stossel. The ABC News correspondent is the one TV reporter who again and again has exposed and ridiculed in devastating style the abuses of litigation and misconduct of lawyers, the excesses of scare-environmentalism, and countless instances of over- and mis-government (his hourlong special “The Trouble With Lawyers” a couple of years back is just one of many highlights; Stossel’s website at ABC). You can bet he’s made a long list of enemies in the course of doing this, and now, after a flub by his staff in a report on organic foods (for which he apologized last Friday on camera) there’s a well-organized campaign under way to take his journalistic scalp. That would reduce from one to zero the number of prominent contrarian TV voices on many of these issues, leaving in place, of course, the large amount of vigorous advocacy journalism from the point of view opposite to his. A recent New York Times roundup on the controversy quotes our editor (Jim Rutenberg and Felicity Barringer, “Apology Highlights ABC Reporter’s Contrarian Image”, Aug. 14); if you wonder what sorts of grossly misleading stories the network newsmagazines have run over the years without anyone’s feeling obliged to apologize for them, check out our article “It Didn’t Start With NBC Dateline“.
Now the Competitive Enterprise Institute has launched a website project devoted to documenting and exposing the campaign to get John fired, and to collecting letters, petition signatures, and other signs of support so that ABC will know how big a fan base he has rooting for him. (SaveJohnStossel.org, temporarily hosted at counterprotest.net/stossel).
August 18-20 – “Caffeine added to sodas aims to addict — study”. Because most consumers in a small study could not tell by taste whether a soda had caffeine in it or not, some researchers at Johns Hopkins arrived at the conclusion that the substance appears in sodas for the sole purpose of “addicting” consumers. (Most of the biggest mass-market sodas offer a choice of caffeinated and non-caffeinated versions; typically the latter is considerably less popular with consumers, who are presumably helpless to choose between the products, enslaved as they are by their addiction.) “The study appeared in Archives of Family Medicine, which is published by the American Medical Association”. (“Pop made to hook drinkers”, Reuters/Detroit News, Aug. 15; “Cola makers rip study on caffeine addiction”, AP/Spokane Spokesman-Review, Aug. 15). Advocates who have participated in the demonization of the tobacco industry and other businesses have frequently denied that the food industry is next on the list. It’s certainly on some folks’ list, however. Last year Yale University researcher Kelly Brownell said: “I have called the food environment in the United States toxic … The food companies and their advertisers are, in fact, luring our children into deadly behavioral patterns … Sooner or later, the food companies will be considered in the same way we regard the tobacco industry.” (“Regulation by Litigation: The New Wave of Government-Sponsored Litigation”, sponsored by Manhattan Institute, Chamber of Commerce of the U.S., and Federalist Society, June 22, 1999, conference proceedings)
August 18-20 – Weekend reading: Macaulay’s bicentenary. Your editor being a longtime admirer of the great classical liberal Thomas Babington Macaulay, his latest Reason column is devoted to appreciating the Whig historian’s written legacy on the 200th anniversary of his birth (Walter Olson, “Confessions of a Macaulay Fan”, Reason, August/September). An outfit called Electric Book is generous enough to webpost downloadable versions of many of his essays, free for individual use (zip files of PDF documents).
August 18-20 – Snakes’ rights not always paramount. Notwithstanding endangered species law, New York environmental authorities have decided not to press charges against 72-year-old Phillip Wheaton for killing a protected rattlesnake that had bitten him. Wheaton had just stepped from his car on a rural road in Cameron, N.Y. when the timber rattler bit him on the leg. Wheaton proceeded to hit the snake with his cane, injuring it; it was taken to a veterinary hospital where it later died. “I had a fight with that snake and I won,” Wheaton said later. “I didn’t cause no fight with that rattlesnake but he caused it with me.” (“Slain serpent”, AP/Fox News, Aug. 16). Last year (Oct. 12) we reported on a court’s ruling, also in New York, that a private landowner was obliged to host rattlers on its property; it ordered the tearing down of a “snake-proof” fence that had prevented the venomous creatures from approaching an area where humans were at work.
August 16-17 –Fortune on Lerach. Don’t miss this long but grippingly reported account of the rise, prosperity and current woes of the world’s most widely feared plaintiff’s securities lawyer, Bill Lerach of the west coast office of Milberg, Weiss. Full of remarkable material new to us (Peter Elkind, “The King of Pain Is Hurting”, Fortune, Sept. 4). Earlier this summer the same magazine published a colorfully detailed account of infighting among the troop of plaintiff’s lawyers angling to bring down the HMO industry (John Helyar, “They’re Ba-a-ack!”, Fortune, June 26).
August 16-17 – Okay to make lemonade. In Eustis, Fla., the city government has backed down from an inspector’s attempt to close down the lemonade stand that nine-year-old Rachel Caine runs across the street from her home. (Stephanie Erickson, “Eustis officials back down from order to make girl, 9, close lemonade stand”, Orlando Sentinel/Ft. Lauderdale Sun-Sentinel, Aug. 9). And in Longmont, Colo., 11-year-old “Soda Girl” Caitlin Rezac is back in business with her fizzy-refreshment stand after a run-in with the Boulder County health department, which had busted her for operating without a hand sink and $110 license; a local business donated the sink (search Denver Post archives on “Caitlin Rezac” (excerpts free, fee for full story); letter to the editor from county official Ann Walters, Boulder Daily Camera, Aug. 12 (scroll) (via Liberzine)).
August 16-17 – Olympics website’s accessibility complaint. The United States isn’t the only place where controversy is simmering over websites that “exclude” blind and other disabled users (by not adopting design and syntax that cater to them). At a recent hearing of the Human Rights and Equal Opportunity Commission in Australia, organizers of the Sydney Olympics defended themselves against charges that they hadn’t made their website usable by the vision-impaired. (Rachel Lebihan, “Olympics web site riddled with blind spots”, ZDNet, Aug. 9). America Online has reached a provisional settlement of the complaint filed against it by the National Federation of the Blind (see Nov. 5); the online service pledges to alter its software to bring it into fuller compatibility with screen reader technology and says it will train its employees to be sensitive to disabled users’ needs, in exchange for which NFB agrees to postpone suing for a year (Oscar S. Cisneros, “AOL Settles Accessibility Suit”, Wired News, July 28). Also: a clip we missed earlier on Congress’s February hearing on this topic: “Do Web Sites Violate the Americans with Disabilities Act?”, TechLawJournal, Feb. 10.
August 16-17 – “City gun suit shot down on appeal”. An appeals court has unanimously upheld a lower court’s dismissal of the city of Cincinnati’s lawsuit against the gun industry, likening that suit “to the ‘absurdity’ of suing the makers of matches because of losses from arson.” Prominent tort attorney Stanley Chesley (see June 1, March 30), representing the city, says he will appeal to the Ohio Supreme Court, which, ominously for the gunmakers, is currently controlled by a majority of justices well disposed to trial-lawyer arguments (see May 8, 2000; Aug. 17 and Aug. 18, 1999). (Dan Horn, Cincinnati Enquirer, Aug. 12; “Cincinnati can’t sue gunmakers for damages, court rules”, Reuters/FindLaw; text of decision (Cincinnati v. Beretta; retrievable Word document, not website).
August 16-17 – Web-copyright update: “Dialectizer” back up, “MS-Monopoly” down. The “Dialectizer“, a website that will translate another page of your choice into a variety of stagey dialects including Redneck, Cockney, Elmer Fudd and Pig Latin, is back up and running; we reported May 18 that the site had closed itself down for fear of being sued by businesses that might view such automated translation of their websites’ contents to be an infringement on their copyright. However, the “MS-Monopoly” parody site, which adapted elements from the popular board game Monopoly to comment on the Microsoft case (see Dec. 3) has been pulled down at the behest of lawyers for toymaker Hasbro, which puts out the real game: “MS-Monopoly.com ‘Cease and Desist’ed by Hasbro Lawyers“. In Forbes, Virginia Postrel says big companies are being shortsighted when they sic lawyers on fan sites that happen to use copyrighted material; News Corp.’s Fox properties, for example, have issued rumbling letters to online enthusiasts of cult shows such as The X-Files and Buffy the Vampire Slayer. (“The Shortsighted Site Busters”, Forbes/Reason Online, July 24).
August 15 – Plastic surgeons must weigh patients’ state of mind, court says. By a 3-2 margin, a New York court has allowed a claim to proceed against a cosmetic surgeon for conducting liposuction and abdominoplasty procedures on a patient while “fail[ing] to take into account that she suffered from Body Dysmorphic Disorder, or a preoccupation with a minor or imaginary physical flaw,” which meant that her consent to the procedures might not really count as informed. The patient made at least fifty visits to the doctor’s office. (Michael A. Riccardi, “Doctor Must Weigh Patient’s Mental State”, New York Law Journal, June 29; Renee Kaplan, “What Should Plastic Surgeons Do When Crazy Patients Demand Work?”, New York Observer, July 31). (Update June 11, 2001: she loses in New York’s highest court). The American Life League, an anti-abortion group, plans to take a leaf from its counterparts on the left and launch a systematic litigation campaign based on malpractice, consumer protection and other theories to shut down abortion clinics, while a conservative writer suggests approaching sympathetic state attorneys general and getting them to file a tobacco-style megasuit against abortion providers (Julia Duin, “Pro-life advocates aim to hit clinics in the pocketbook”, Washington Times, Aug. 10; Chuck Morse, “Big Tobacco and the Abortion Industry”, EtherZone, June 12). In Erie, Pennsylvania, a judge has declared a mistrial in a medical malpractice trial after a juror fainted during the trial and the defendant physicians revived him; the judge thought it necessary, lest this act of kindness be thought to have improperly prejudiced the proceedings, to restart the whole ordeal from scratch (“Doctors accused of malpractice aid juror who fainted”, AP/CNN, Aug. 11). And Overlawyered.com‘s page on law and medicine has been selected as a resource by the MedExplorer medical search site.
August 15 – The Veep that got away. It’s been widely reported that the other finalist in the process by which Al Gore picked his running mate was youthful Sen. John Edwards of North Carolina, who’d have been an equally noteworthy pick from litigation reformers’ perspective but for opposite reasons: after briefly representing record companies Edwards “moved to Raleigh, N.C., in 1981 and became a plaintiffs’ lawyer. That made him a millionaire. His fortune has been estimated at $20 million to $50 million.” Edwards proceeded to sink an estimated $10 million from his own pocket into his first and only political campaign, knocking off incumbent Republican Lauch Faircloth by 4 points. The Gore camp saw Edwards as telegenic, a skillful speaker and from an important state, but worried that his past could backfire among voters unhappy with trial lawyers for “doing things like suing doctors and winning big verdicts, which then drive up health care costs — and Edwards has been an incredibly successful one of that breed.'” (Michael Kramer, “Aides: Al Leaning Toward Edwards”, New York Daily News, Aug. 6).
August 15 – “Teams liable for fans’ safety”. A Colorado court of appeals has ruled that “sports teams must protect fans from known dangers — such as flying hockey pucks — unless lawmakers specifically exempt the teams from such liability.” Diane Smith, a lawyer for the now-defunct Denver DareDevils roller hockey team, said fans sit in the more hazardous area near the goal because they want the best view and “if you are going to sit where the action is, there are risks that go along with that”; appeal to the state’s high court is planned (Howard Pankratz, Denver Post, Aug. 4).
August 14 – Bush-Lieberman vs. Gore-Nader? Our editor contributes a guest column today (pinch-hitting for the vacationing Holman Jenkins) for Opinion Journal, the Wall Street Journal editorial page’s new online venture. The column discusses the strong record Sen. Joe Lieberman has compiled on litigation reform, the dilemma this poses for Vice President Gore, the wrath it calls down on his head from fellow Connecticut resident Ralph Nader, and the reasons why America is unusual in treating the pro-litigation position as “progressive” when it isn’t deemed to be such in much of the rest of the world (“Not All Liberals Love Lawsuits”, Aug. 14).
August 14 – “Disney must pay $240 million in sports park lawsuit”. A jury in Orlando “ruled Friday that the Walt Disney Co. stole the idea for a sports theme park from a former baseball umpire and his architect partner and must pay $240 million in damages,” a sum that the judge has discretion to increase because the jury found Disney acted with malice. “The notion that we had to steal the idea from the plaintiffs, an idea as old as ancient Greece, is preposterous,” said Disney general counsel Lou Meisinger, who said “the plaintiffs lawyers had tried to frame the case as ‘little people against big business’ and attempted to ‘inflame their prejudice.’ Plaintiffs’ lawyer Willie Gary”, well known for his work on the Loewen and Coke cases, “called Disney’s reaction ‘sour grapes.’ ‘We beat ‘em and quite frankly we’ll beat ‘em again if we need to,’ Gary said. ‘They’re crying like little babies.'” Another member of the team of plaintiff’s attorneys was Johnnie Cochran of O.J. Simpson case fame (CNN, Aug. 11; Beth Piskora, “Ump and architect sue Disney for $1.5 B”, New York Post, Aug. 10; “The Mouse Stole Idea”, Aug. 12; Yahoo Full Coverage).
August 14 – “Airbag chemical on trial”. Because of the airbag in her $30,000 Mercedes, Edith Krauss and her husband walked away from a 1997 crash that otherwise might have killed them. But Krauss is suing the luxury automaker anyway: she “contends that she has been plagued by throat ailments since the crash and they stem from her inhaling sodium azide, the chemical that allows for the forceful deployment of airbags.” The company says the concentration of the chemical in an airbag is too low to cause harm. Trial began last week in Elizabeth, N.J. (MaryAnn Spoto, Newark Star-Ledger, Aug. 8).
August 14 – Embarrassing Lawsuit Hall of Fame. Among recent lawsuits with details so embarrassing it’s a wonder anyone would file them: a Barberton, Ohio woman is suing an acquaintance in small claims court, saying he reneged on a promise to let her pay in sexual favors for part of the sale price for a truck (Stephanie Warsmith, “An unusual ‘contract’ is in court”, Akron Beacon Journal, Aug. 10); the Massachusetts Commission Against Discrimination has recommended dismissal of a complaint by an employee of the town of Plymouth, who had charged that a town official inflicted a hostile working environment on her by (among other things) subjecting her to flatulence, the commission reasoning that the passing of gas is not sexual in nature (Aug. 27, 1999; not online, case referred by UCLA law prof Eugene Volokh); and an Ottawa man has sued a city hospital, saying it misdiagnosed a very intimate injury committed to his person after he got on stage at a club and allowed an exotic dancer to sit on his chest (Glen McGregor, “Man sues hospital over testicle removal”, Ottawa Citizen/National Post, Aug. 8; more exotic dancer litigation: July 26, May 23 (also from Canada), Jan. 28).
August 11-13 – Litigation reform: the Texas experience. Citizens for a Sound Economy releases a report evaluating the results of the 1995 package of litigation reforms enacted in Texas under Gov. George W. Bush (more about package, from Governor’s office). Prepared by the Perryman Group of Waco, Tex., the report estimates that the reforms contributed significantly to reducing prices, raising personal incomes and stimulating economic development in the Lone Star State, with resulting benefits to the average Texas household of $1,078 a year. (“The Impact of Judicial Reforms on Economic Activity in Texas”, Aug. 9; executive summary links to PDF document).
Earlier, Texas insurance commissioner Jose Montemayor estimated that insurance buyers in the state would save a cumulative $2.9 billion by 2000 through mandated rate reductions linked to the lawsuit reforms: “Tort reform has been a tremendous success.” (“Commissioner says tort reform saves Texans $2.9 billion”, AP/Abilene Reporter-News, Oct. 2, 1999). Trial-lawyer-allied groups soon attacked the figures (Terrence Stutz, “Tort Reform Savings on Insurance Overstated”, Dallas Morning News, Dec. 21, 1999, reprinted at Kraft Law Firm site), and have gone to considerable lengths to publicize their case since then (see Richard A. Oppel Jr. and Jim Yardley, “Bush Calls Himself Reformer; the Record Shows the Label May Be a Stretch”, New York Times, March 26, 2000, excerpted at Democratic National Committee site; now 404 Not Found, but GoogleCache has preserved a version). For a riposte from the reform side, see Tom Beaty, “Legal reform has brought benefits to business”, Houston Business Journal, Feb. 21, 2000.
And see: Constance Parten, “Texas Holds Its Own in Insurance Rates”, Insurance Journal, June 26, 2000 (reform package wasn’t expected to bring major savings in auto insurance, as opposed to commercial and medical lines, but did so anyway); Lone Star Report, Aug. 27, 1999 (scroll halfway down for item); and Texans for Lawsuit Reform. Citizens Against Lawsuit Abuse, Houston, has posted a variety of materials on the controversy at its website, including a summary of reforms; Jon Opelt, “$3 Billion Hardly Chump Change“; and Cora Sue Mach, “Governor Bushwhacked over Lawsuit Savings“. (DURABLE LINK)
August 11-13 – “Ohio cracks down on keggers”. Under a new Ohio law, people who want to give parties for which they’ll buy five or more kegs of beer must register the location of the party in advance, wait five days to take possession of the kegs, and “allow liquor agents and police to enter the property to enforce state liquor laws, a requirement that bothers the American Civil Liberties Union and others.” Several states have or are considering similar laws. “Maryland has required keg registration since 1994 to allow the containers to be traced to the buyer and the seller, both of whom are held accountable if minors are caught drinking the alcohol.” (Liz Sidoti, AP/St. Louis Post-Dispatch, Aug. 8).
August 11-13 – Stay away, I’ve got a court order. Last year Maryland passed a new law allowing residents to apply for a civil restraining order to keep away people who they say have frightened or harassed them, a type of protection long available in matrimonial cases. Now the law is being used more than proponents expected, and not just by unmarried paramours and other intimates but as a way to settle — or escalate — spats among schoolmates, neighbors, co-workers and virtual strangers. (Donna St. George, “Residents Seeking ‘Peace’ Invade Md. Courts”, Washington Post, Aug. 7).
August 11-13 – “Not even thinking about” fees. With appeals and other legal maneuvering expected to last quite a while after a Miami jury’s $145 billion punitive damage award against tobacco companies, Knight-Ridder asked plaintiff’s attorney Stanley Rosenblatt about fees he might reap from the action. “It’s so far down the road that we’re not even thinking about it,” he claimed. (Uh-huh.) “Generally lawyers’ fees in class-action suits are about 25 to 30 percent of the award or settlement,” the news service reports, though it speculates that trial judge Robert Kaye might approve a smaller fee award than that, perhaps a mere $1 billion. Rounded off in the overall context, that would count as almost nothing, right? (“Smokers’ lawyers could get $1B — or zilch”, Knight Ridder/Norwalk (Ct.) Hour, July 26, not online). Plus: commentary by the Cato Institute’s Robert Levy (“Litigation Lunacy in Florida”, Cato Daily, July 31).
August 31 – Update: Alabama campaign-tactics case. A judge has sentenced prominent Alabama trial lawyer Garve Ivey to 30 days in jail after a jury convicted him on misdemeanor charges arising out of a smear campaign against the state’s Lieutenant Governor, Steve Windom (see Sept. 1 and Aug. 26, 1999). Shortly before the 1998 election, with Windom running a hard-fought race against a trial lawyer-backed opponent, a former prostitute and heroin addict named Melissa Myers Bush stepped forward with a lawsuit dramatically charging that Windom had raped and beat her seven years earlier when she worked for an escort service. Ivey, who was serving at the time as an official of the state trial lawyers association, paid to have 300 copies made of a videotape of Bush describing her charges, “which were distributed to news outlets across the state”. But as questions arose, Bush soon recanted and said she’d been paid to tell her story and that it was false. According to later testimony at trial, Bush accepted $2,700 from Birmingham businessman Scott Nordness, money that was later reimbursed by Ivey. Nordness was granted immunity by prosecutors seeking his testimony and charges were filed against Ivey and a private investigator who’d worked with him, Wes Chappell.
On June 22 a Mobile County jury acquitted Chappell of the charges and rendered a split decision in Ivey’s case, acquitting him on the felony count of bribing Bush to give false testimony while convicting him on two misdemeanor counts of witness tampering and criminal defamation. According to AP, the witness tampering charge arose from Ivey’s having gotten Nordness to sign a sworn statement after Bush’s lawsuit which, in prosecutors’ view, seemed to suggest that no money had changed hands in the case. Windom says he feels vindicated after two years and expects an apology from the state trial lawyers’ group, which he says tried to dodge the appearance of involvement in the smear efforts when trial testimony indicated the contrary. “The evidence clearly showed that there was a great deal of involvement at every stage. They need to come clean with the public and with their own members,” he said. (The AP coverage does not include a response from the trial lawyers’ group.) Ivey’s lawyers plan an appeal; still pending as well are civil suits that Ivey and Windom have filed against each other over the affair. Update: in July 2001 the Alabama Supreme Court reversed these convictions and ordered Ivey acquitted of the charges (see July 7, 2001).
SOURCES: “Ivey sentenced to 30 days in jail on witness tampering”, AP, August 9, not online, available on NEXIS; Garry Mitchell, “Chappell cleared, Ivey found guilty in Windom trial”, AP/Decatur Daily, June 23; Garry Mitchell, “Windom wants apology from trial lawyers”, AP state and regional wire, June 23, not online, available on NEXIS; Gary McElroy, “Former call girl testifies”, Mobile Register, June 16; “Chuck’s Page” (page by Chuck Harrison, a witness called in the case; scroll down halfway to “Just Desserts”).
August 31 – “Diva awarded $11M for broken dream”. Last week a Little Rock, Ark. jury awarded aspiring opera singer Kristin Maddox, now 23, $11 million “for injuries she suffered when an American Airlines jet went off a runway last year while landing in a thunderstorm”. Maddox was studying opera in hopes of becoming a star but says damage to her voice box and hands in the crash ruined her professional chances. Her lawyer, “Bob Bodoin, told jurors that no amount of money would make up for her pain and the loss of a career that could have rivaled opera stars Beverly Sills or Luciano Pavarotti’s”. However, a university voice teacher who evaluated one of Maddox’s pre-crash performances on video said she had a voice that, while “lovely”, was also too light to fill an auditorium in the Sills or Pavarotti manner. (AP/Philadelphia Daily News, Aug. 25; discussion on Professional Pilots Rumour Network boards).
August 31 – “Breaking the Litigation Habit”. The business-oriented Committee for Economic Development released a report in April which “calls our litigation system ‘too intrusive, too slow, and too expensive.’ The current system does not adequately or fairly compensate people for injuries; it imposes costs that threaten to impair economic innovation; and it undermines the trust and civility among our citizens that are essential to a well-functioning, democratic society.” The report goes on to endorse “Early Offers” and “Auto Choice” reforms, both aimed at providing rapid compensation for injuries without litigation (introductory page links to executive summary and full report in PDF format).
August 29-30 – Back-to-school roundup: granola bars out, Ritalin in. The Fallingbrook Community Elementary School, in an Ottawa suburb, has “banned all snacks except fruits and vegetables in an attempt to protect children with allergies”. Children in K-4 “have been asked not to bring cheese and crackers, dips, yogurt, candy bars or homemade muffins for snacks” for fear of triggering reactions in other kids with peanut, dairy, egg or other allergies. Fallingbrook parent Theresa Holowach would like to send cereal bars or homemade muffins with her eight-year-old son and kindergartner-to-be daughter but was willing to settle for rice cakes, cheese and crackers; her requests, however, “were refused on the grounds that the school would be legally liable if actions were not taken to limit the risks for children with serious allergies. ‘To me the school is going to have serious liabilities if my child chokes on a carrot because you’ve forced me to give her raw fruit and vegetables,’ said Ms. Holowach”. (Gina Gillespie, “School bans all snacks except fruit, vegetables”, Ottawa Citizen/National Post, Aug. 26).
Meanwhile, both the New York Law Journal and USA Today say there are other cases, besides the recently reported one near Albany, N.Y. (see July 26), in which schools are resorting to legal action to compel unwilling parents to dose their children with Ritalin, the controversial psychiatric drug. (John Caher, “New York Ritalin Case Puts Parents, Courts on Collision Course”,New York Law Journal, Aug. 18; Karen Thomas, “Parents pressured to put kids on Ritalin”, USA Today, Aug. 8). The Christian Science Monitor also reports on a different kind of legal pitfall that may await the non-medicating parent: in 1995 the Wisconsin Supreme Court upheld a $170,000 jury verdict against parents whose fourth-grade special-ed student attacked his teacher after they took him off medication that had reduced his aggressive behavior. (Katherine Biele, “When students get hostile, teachers go to court”, Christian Science Monitor, Aug. 22). However, the Wisconsin court stressed in that case that it was not imposing on parents a duty to keep the child on medication, but rather a lesser duty to warn the school if they decided to discontinue the drug (summary on Spedlaw.com website of Nieuwendorp v American Family Ins Co., 22 IDELR 551 (1995)).
The Monitor reports that educators are taking kids themselves to court over an ever-wider range of misconduct, especially defamation (see Sept. 28, Nov. 15). Most students are deemed “judgment-proof” but state laws specify a limited measure of parental financial responsibility for kids’ misbehavior, usually limited to such sums as $1,000 or $2,500, which can however escalate to unlimited amounts if the parents are deemed negligent, as in the Wisconsin case. And in Rhode Island, to update an earlier story (see April 19), two years of wrangling over whether Westerly High School sophomore Robert Parker was out of line to wear a rock band T-shirt displaying the numerals 666 have ended, with the school facing a cumulative bill for the dispute of $60,000. (American Civil Liberties Union/AP, July 6).
August 29-30 – Denny’s bias charges: let’s go to the videotape. Another day, another discrimination suit demanding money from the Denny’s restaurant chain on charges of racially based denial of service. But it so happened that a security video camera was running during the alleged Cutler Ridge, Fla. incident, and the story told by its tape was so at odds with the story the complainants were telling that their lawyer, Ellis Rubin of Miami, felt obliged to withdrew from the case for fear of facing sanctions if he continued. “In 1994, Denny’s settled a $46 million class action with hundreds of black customers who had alleged that they were refused service at the chain’s restaurants”; despite the diversity training it’s instituted since then it still faces many new public-accommodations suits, but its management vows to fight those that it considers opportunistic. (David E. Rovella, “Denny’s Serves Up a Winning Video”, National Law Journal, Aug. 24) (see also Sept. 29).
August 29-30 – Welcome Yahoo Internet Life readers. Last Friday’s installment of “Ask the Surf Guru” carried this nice accolade: “*** Special to Gwendolyn: Like Cassandra said in Mighty Aphrodite, “I see disaster. I see catastrophe. Worse, I see lawyers.” But better is seeing Walter Olson’s daily odes to odious lawyering at Overlawyered.com, where he chronicles how attorneys clog the drain of American life with lawsuits that redefine the word ‘frivolous.'” Thanks! (ZDNet/Yahoo Internet Life, Aug. 24 — final item).
August 29-30 – “Lawyers want millions as cut of Holocaust settlement”. “On April 12, 1997, Arthur Bailey, one of the dozens of lawyers who helped negotiate a $1.25 billion settlement finalized last month between Swiss banks and Holocaust survivors, bought a copy of the book ‘Nazi Gold’ by Tom Bower and spent 8.6 hours reviewing it. Cost to plaintiffs: $2,365, or $275 an hour.” Lengthy telephone conversations between lawyers and a half-hour interview granted by a lawyer to the Washington Post are among other outlays of lawyers’ time for which reimbursement is being sought in the $13.5 million fee request, which Elan Steinberg, executive director of the World Jewish Congress, described as “outrageous”: “We said from the beginning that the lawyers should be acting pro bono,” i.e., without compensation. (Steve Chambers, Newhouse News Service/Cleveland Plain Dealer, Aug. 15).
August 29-30 – Imagine if she’d had a photo of a gun too. Police in Davidson, North Carolina “are defending an officer’s decision to search a woman’s car for drugs after spotting a photo of a marijuana plant on the cover of a newspaper in her car.” The driver, when stopped at 1 a.m., had a copy of an alternative weekly in her car with a cover story on police use of helicopters against marijuana growers, and consented to the search request, police said. A journalism professor says carrying such material could not possibly be probable cause for a car search. Nothing unlawful was found in the vehicle. (“Police say photo of marijuana plant sufficient cause for drug search”, AP/Raleigh News & Observer, Aug. 25) (via Progressive Review).
August 28 – “Man killed in gas explosion told to clean up rubble”. “One day after a Brooklyn couple died in a gas explosion at their home, city officials fired off a letter to the dead husband insisting that he was responsible for immediately cleaning up the rubble.” On July 11 a massive blast leveled the home of Leonard Walit, 72, and his 66-year-old wife Harriet, who were buried under the rubble of the four-story brownstone with a third victim. “The responsibility to [repair or demolish the premises] is yours, and because of the severity of the condition, the work must begin immediately,” declared the form letter from building commissioner Tarek Zeid, which warned the deceased couple that if they delayed the city would perform the necessary work and bill them for the expenses. Critics say the city should have known better given that the blast made big headlines, and a spokesman for the Buildings Department has apologized. (AP/Yahoo, Aug. 26).
August 28 – Campaign consultants for judges. At $15,000 a pop it gets expensive fast to hire professional campaign help, but elected Florida judges increasingly feel they have to shell out for two, three or four of the hotshot local consultants — especially since if they don’t put them on retainer, they might just find themselves facing a challenger who has. It’s another reason reformers are hoping to move to an appointive system. (Tony Doris, “Full-Court Press”, Miami Daily Business Review, Aug. 23).
August 28 – “Relatives find ‘proof’ they own New York”. “Descendants of an 18th-century privateer are hoping that a copy of an ancient lease discovered in an attic in South Wales may finally prove that they are the rightful owners of the world’s most valuable piece of real estate,” reports London’s Sunday Times. “For 120 years the descendants of Robert Edwards have been trying to establish their rights to 77 acres of Manhattan on which now stand Wall Street, the New York Stock Exchange, [lower] Broadway and the World Trade Center.” And who’s to say they won’t succeed, given the enthusiasm shown by American courts for hearing Indian land suits (see Feb. 1), liability claims arising from the sale of products in the first years of the Twentieth Century, and perhaps, before long, slavery reparation cases as well? (Simon de Bruxelles, Sunday Times (London), Aug. 22).
August 25-27 – Mich. high court: tough on working (arsonist) families. As the nasty race for the Michigan Supreme Court heats up (see May 15, May 9, Jan. 31), opponents have rolled out television ads assailing three Republican justices as “antifamily” and biased toward business, on the strength of 43 decisions they’ve rendered that supposedly fit that pattern. However, when the Detroit Free Press‘s Dawson Bell looked into the details, he discovered that among the rulings being flayed as “antifamily” is one from last year denying insurance coverage to “a pair of convicted arsonists who burned down a row of buildings”. A look at the rest of the cited court decisions likewise “indicates that the content provided in the ads borders on the bogus.” For example, in six cases the ad-makers counted government defendants in lawsuits — that is to say, the taxpayers — as “corporations”; they omitted a half dozen cases that obviously didn’t fit their pattern, while including “at least seven cases in which an individual won, or a corporation wasn’t a party;” and they included fourteen cases in which the court’s Democrats agreed with the outcome. Where’s the state Democratic Party getting the money for its big ad buy trashing the GOP judges? It’s hard to know for sure, but trial lawyers are said to have privately pledged millions to defeat the trio at the polls (see May 9). (Dawson Bell, “Party politics enters high court race”, Detroit Free Press, Aug. 3; Kathy Barks Hoffman, “Chamber runs ads to counter Democrats’ attacks on justices”, AP/Detroit News, Aug. 17; Charlie Cain, “High court race will be nasty, pricey”, Detroit News, June 23). Opponents of the three justices have mounted not one but two websites: AgainstMichiganFamilies.com and The Justice Caucus. But in fact “Michigan’s Supreme Court may be the nation’s best example of a court committed to interpreting the law — not manufacturing it,” contends National Review Online contributor Peter Leeson (“Michigan’s Supreme Court Is Supreme”, Aug. 22). That makes it a notable contrast with the high court in neighboring Ohio, where a narrow majority of justices last year (see Aug. 18, 1999) used activist reasoning to strike down legislated liability limits, and are now being heavily backed by trial lawyers in their re-election bids (Thomas Bray, “A Nation of Laws, or of Judges?”, Opinion Journal, Aug. 17).
August 25-27 – “Albuquerque can seize homes hosting teen drinking”. Under a bill approved by the city council of New Mexico’s largest city, you can now look forward to losing your house if the neighbors complain about repeated gatherings of tippling teens while you’re away. (Kate Nash, Albuquerque Tribune/Nando Times, Aug. 23).
August 25-27 – “How do you fit 12 people in a 1983 Honda?” Brazen, well-organized car-crash fraud rings thrive in the Big Apple, according to a series of New York Post exposés this summer. Other states are well ahead of New York in enacting legislation aimed at curbing fraud; meanwhile, the “Pataki administration is in court trying to overturn a decision in which the trial lawyers and medical profession successfully sued to have the state’s existing no-fault regulations thrown out.” June 25 (related story); June 26; June 27; July 16 (related story); August 6). Last year New York City recouped $1 million following the racketeering and fraud convictions of attorney Morris Eisen, a one-time major filer of injury claims who prosecutors say introduced fraudulent evidence in at least 18 cases, including three against the city (press release from office of Comptroller Alan Hevesi, May 18, 1999).
August 25-27 – Retroactive crash liability. Following years of lobbying by trial lawyers, Congress passed and President Clinton signed in April a new law retroactively raising the amounts payable in lawsuits to relatives of those killed in three air crashes over international waters, including the loss of TWA Flight 800. The little-publicized passage, “nestled on page 71 of a 137-page budget bill … carries an effective date of July 16, 1996″ — almost four years before its signing. It abolishes old limitations on lawsuits set by the historic Death on the High Seas Act so as to expand the sums recoverable for “non-pecuniary” losses, such as the “care, comfort and companionship” of the deceased. The result is to ensure substantially higher payouts in litigation over the TWA crash, for which that airline and Boeing are being sued, as well as the Atlantic downings of Swissair Flight 111 and EgyptAir Flight 990. Sen. Slade Gorton (R-Wash.), who represents Boeing’s home state, had argued to no avail that it was unfair to expand the companies’ obligation retroactively. (Frank J. Murray, “Retroactive move allows big awards in TWA crash”, Washington Times, Aug. 24).
August 23-24 – Class actions: are we all litigants yet? If you’re a member of American Airlines’ frequent-flier plan, you may have received by now a class action settlement notice in which the airline agrees to make legal amends for the atrocity of having raised from 20,000 to 25,000 miles the point level needed to claim a free coach round-trip. After slogging through the legal jargon, St. Petersburg Times columnist Susan Taylor Martin finds that the “most that ‘class members’ in my category can expect is this: a 5,000-mile discount on a frequent-flier award or a certificate for $75 off on a ticket costing at least $220. Wow. But let’s read on. In return for negotiating this settlement, the lawyers representing me and other plaintiffs will apply for fees ‘not to exceed $25 million.’ No wonder we’re such a lawsuit-happy nation.”. She asks her newsroom colleagues if they’ve been represented in class actions, and they inundate her with responses. Then she goes on to cite this website, quote a number of comments from our editor, discuss proposed reforms that would redirect nationwide class suits to federal courts, and finally take up the much-recurring question: what’s the best way to discourage further legal excesses of this sort, to fill out and return the claims form, or toss it in the waste basket? (Susan Taylor Martin, “Is anyone not involved in a class-action lawsuit?”, St. Petersburg Times, Aug. 20). Also see Sarah Haertl, “Bill Limits Class-Action Fees for Attorneys”, Office.com, June 19.
August 23-24 – Funds that don’t protect. “Client protection funds” are supposed to reimburse persons who fall victim to thievery by their lawyers, but a National Law Journal investigation finds the funds “poorly endowed, stingy about payouts and virtually a secret, even to many lawyers, whose bar dues help finance them”. Many victims get just pennies on the dollar, or nothing at all: “cheated clients are getting twice betrayed by the legal professionals who should be protecting them”. (“Wronged Clients Face an Empty Promise in Some States”, Aug. 21).
August 23-24 – Fateful carpool. The consent of one’s spouse is no excuse for violating a restraining order obtained by her earlier, as Blaine Jeschonek has learned to his sorrow in Bedford, Pennsylvania. When Jeschonek, 44, arrived in court accompanied by his estranged wife Beth, Judge Thomas Ling promptly ordered him arrested and charged with criminal contempt for violating a court order forbidding him to have contact with her. “The Jeschoneks had traveled together to court to ask Ling to dismiss the restraining order. ‘I will not tolerate these orders being violated in my presence, under my nose, in my own courtroom,’ Ling said.” (“Pennsylvania man carpools to court and faces contempt”, AP/CNN, Aug. 14).
August 23-24 – Bankrupting Canadian churches? A remarkable legal story is unfolding in Canada, where down through the 1960s the country’s major churches, under an arrangement with the national government, administered residential schools for youths from Indian tribes. A significant share (perhaps 20 percent) of all school-age Indians attended these schools, thus being separated from native communities for much of their childhood. As ideas of multiculturalism made headway, the schools with their premise of assimilation to English culture came to be regarded as an embarrassing legacy, though at the time they had enjoyed the support of most Indian bands. In recent years adults who attended the schools in their youth have filed legal actions against the school proprietors, originally in small numbers over claims of past physical and sexual abuse, but more recently in much larger numbers, more than 7,000, with the predominant alleged injury among new cases being “cultural deprivation” years or decades earlier. Claimant recruitment by attorneys has played a major role in the expansion of the dispute; one lawyer alone, Tony Merchant of Regina, Saskatchewan, has assembled no fewer than 4,300 former school residents from across Western Canada to press claims. Although very few cases have yet reached court, early rulings suggest that the litigation may inflict money transfers and legal costs so large as to bankrupt or financially cripple some or all of the church defendants: the Anglican Church of Canada, United Church of Christ, Presbyterian Church of Canada and Roman Catholic Church of Canada (David Frum, “The dissolution of Canadian churches”, National Post, Aug. 19; “Tending the flock”, editorial, Aug. 16; Richard Foot, “Deputy PM to meet Church leader over bankruptcy crisis”, Aug. 16; Ian Hunter, “Paying for past injustice is unjust”, July 20; “Sins of the fathers”, editorial, July 17; Ferdy Baglo, “Canada’s Anglican Church Considers Possibility of Financial Ruin“, Christianity Today). (DURABLE LINK)
MORE RESOURCES: Law Commission of Canada; Anglican Church of Canada (main page; apology; in Oji-Cree syllabics (pdf)); United Church of Canada (FAQ, news); Turtle Island Native Network (resources, news); Diane Rowe for White Oppenheimer & Baker (plaintiff’s law firm); Jane O’Hara and Patricia Treble, “Abuse of Trust”, Maclean’s, June 26; “Residential Schools: An Essential Component of Genocide” (University of Victoria); Jay Charland, “St. Paul diocese part of $195M suit”, Western Catholic Reporter; Patrick Donnelly, “Scapegoating the Indian Residential Schools”, Alberta Report, Jan. 26, 1998, reprinted at Catholic Educator Resource Center.
August 23-24 – Welcome screenwriters. It’s hard to beat what goes on in courtrooms for sheer drama, which may be one reason at least two sites catering to professional screenwriters link to Overlawyered.com. CreateYourScreenplay.com gives us a nice encomium on its “Research” page (scroll down to “O”) and we also figure on the “Miscellaneous” links page of DailyScript.com.
August 21-22 – Tobacco- and gun-suit reading. National Journal columnist Stuart Taylor, Jr. pens a powerful critique of the tobacco litigation (“Tobacco Lawsuits: Taxing The Victims To Enrich Their Lawyers”, Aug. 1; quotes our editor). The American Tort Reform Foundation has published a review of the state tobacco suits, with particular attention to the questionable interrelationships between private for-profit lawyers and state attorneys general; the authors are well-known Wall Street Journal editorialist John Fund and Martin Morse Wooster (“The Dangers of Regulation Through Litigation: The Alliance of Plaintiffs’ Lawyers and State Governments,” March 30, available through ATRF). Prof. Michael Krauss, of George Mason University School of Law, has written an analysis for the Independent Institute exploring the manifold legal weaknesses of the recoupment actions filed by states and cities against both firearms and tobacco makers (“Fire and Smoke”, orderable through II). And we’ve now posted online our editor’s op-ed from last month on the Florida jury’s $145 billion punitive damage award in Engle v. R.J. Reynolds (Walter Olson, “‘The Runaway Jury’ is No Myth”, Wall Street Journal, July 18).
August 21-22 – A thin-wall problem. A suburban Chicago attorney with Tourette’s Syndrome, the neurological condition that causes its sufferers to experience tics often in the form of uncontrollable utterances or gestures, is going to collect upwards of $300,000 in settlement of a lawsuit against the condominium association of which he and his wife were members. Jeffrey Marthon, 54, agreed in exchange to move out and to drop his suit contending that the association had violated fair-housing laws by attempting to evict him; the association had filed a legal action complaining of the noise from his involuntary hooting and foot-stomping. “Several neighbors said in affidavits that they were losing sleep because of noises coming from Marthon’s third-floor condo,” and engineers said it was impossible to install soundproofing to mitigate the problem. (Dan Rozek, “Man with Tourette’s cuts deal vs. condo”, Chicago Sun-Times, Aug. 18).
August 21-22 – Fit to practice? The California Supreme Court, reversing a lower panel, has unanimously ruled against granting a law license to convicted felon Eben Gossage, a scion of an affluent San Francisco family who says he’s turned his life around and is fit to become an attorney notwithstanding an extensive record of past trouble with the law, most notably a manslaughter conviction for having brutally killed his own sister (Kevin Livingston, “Convicted Killer Denied California Bar Card”, The Recorder/CalLaw, August 16). At a June hearing, Justice Joyce Kennard “made it clear she was bothered by Gossage omitting 13 of his convictions on his Bar application.” (“How Long Is Long Enough?”, June 7). Several prominent Bay Area politicians had appeared as witnesses for Gossage, among them state senate president John Burton; after the one nonlawyer member of the lower disciplinary panel dissented from the panel’s decision that Gossage should be allowed to practice law, Burton introduced and helped secure passage of a bill which abolished that nonlawyer’s seat on the panel, sending, in the view of commentator George Kraw, an unsubtle message — “Don’t antagonize important legislators” (“Friends in High Places”, July 31; Mike McKee, “Court Sounds Leery of Bar Court Shuffle”, May 4; Mike McKee, “State Bar Court Braces for Upheaval”, June 29, reprinted at Kerr & Wagstaffe LLP site). Meanwhile, at least two lawyers implicated in California’s famous “Alliance” scandal are trying to regain their licenses to practice; the “Alliance”, a covert joint venture between plaintiffs’ and defense lawyers to manufacture and prolong legal claims for which the insurers would be obliged to employ legal counsel, bilked large insurance companies out of hundreds of millions of dollars in the 1980s (Mike McKee, “Scoundrel — or Scapegoat?”, The Recorder/CalLaw, June 13; more about Alliance (Kardos CPA site)).
August 21-22 – Watch those fwds. Last month “Dow Chemical, the No. 2 U.S. chemical company, fired about 50 workers and suspended another 200 for up to four weeks without pay, for sending or storing pornographic or violent e-mail messages. ” The “range of material” involved includes “stuff that would be in a swimsuit edition” as well as more offensive material, the company says; in a fit of mercy, it did not discipline workers who merely received such material as email and did not forward it to others. Under widely accepted interpretations of harassment law, companies that fail to take action against circulation of ribaldry in the workplace face possible liability for allowing a “hostile working environment”. (“Dow Scrubs 50 for Eyeing Porn”, Reuters/Wired News, Jul. 28). Workers who imagine that their email is private, readily deleted, and secure don’t seem to realize the current state of the law and the technology, says a risk-consulting division of law firm Littler Mendelson (Chris Oakes, “Seven Deadly Email Thoughts”, Wired News, Aug. 8). Nor are “anonymous” postings to bulletin boards really anonymous once the legal actors — including private lawyers — launch their subpoenas (Carl S. Kaplan, “In Fight Over Anonymity, John Doe Starts Slugging”, New York Times, June 2; Michael J. McCarthy, “Can Your PC Be Subpoenaed?”, ZDNet, May 24; Lauren Gard, “Yahoo Hit With Novel Privacy Suit”, The Recorder/CalLaw, May 15).