Chronicling the high cost of our legal system
Posts by author:
Overlawyered.com readers, thanks for reading my posts and allowing me to invade your cyberspace. Thank you Mr. Olson for letting me sap your bandwidth on this site. Two things to leave you with, as The Monk’s one-week term as guest blogger ends:
1) This amusing entry from James Lileks regarding the social aspects of the various lawsuits urging that church-state separation means no “Christ” in Christmas.
2) Merry Christmas, Joy of the Season, All the Best and Happy New Year.
From the “Must do more, somehow” column comes this tragedy-spawned lawsuit by a grieving mother following the suicide of her daughter. The daughter was a manic depressive schizophrenic who killed herself with a shotgun she bought from Wal-Mart. The Wal-Mart branch seven miles away had on file her prescription for anti-psychotic medication. The mother wants $25,000,000 from Wal-Mart for failing to prevent the tragedy by reviewing her daughter’s pharmacy records or its own store records (the daughter had assaulted another person at the store where her prescription was on file).
Problem 1 = Federal law prohibits revealing pharmacy records in running firearm background checks.
Problem 2 = Texas law prohibits the publication of mental health records without the patient’s approval.
Problem 3 = How does an attack on a third party result in any evidence that someone is suicidal?
Details are here.
{ 3 comments }
One of the reasons that The Monk supported the revolutionary and quite extensive tort reform that the Texas Legislature passed last year (commonly still known as “House Bill 4″) is that trial lawyers have a tremendous capacity to find ways to, er, protect their clients’ interests no matter how many pathways to victory, loopholes in previous laws or damage caps are put in place.
And this ingenuity is being exported from US courts to international tribunals. As James Pinkerton’s column notes, “the trial lawyers, entrepreneurial as always, have found new courts – world courts – to play in. And they have found allies among activists and fortune-hunters who dismiss traditional democracy and diplomacy in pursuit of their goals.”
Yipes.
UPDATE: for more on the Inuit lawsuit noted in Pinkerton’s column, check out Point of Law’s item noted by this site’s editor here. For those of you just tuning in, Point of Law is Overlawyered’s companion site that (as its own description states) “is a web magazine sponsored by the Manhattan Institute that brings together information and opinion on the U.S. litigation system.”
In the United Kingdom of Great Britain and Northern Ireland, a group of Sikh “protesters” forced the cancellation of a controversial play described as a “black comedy” that centered around rape and murder at a Sikh temple. The details are in this article (registration is gratis) and some outrage is in this short lead editorial.
Here is what is most worrisome — the notion that free speech must give way to the (violent) protests of the community (and the concurrent lack of protection by peace officers). The attitude is nicely encapsulated by these two reactions:
The Ninth Circuit reinstated indictments against seven defendants accused of financing a terrorist group. The ruling also reversed a district court ruling that invalidated the 1996 terrorism-financing law under which the US government had issued the indictments. The bush Administration has used the law as a tool to prosecute people who have allegedly bankrolled terrorist organizations by contributions to “charity” organizations. This ruling matches the outcome of a similar case before the Fourth Circuit Court of Appeals. Details are here.
The ruling is especially notable because the Ninth Circuit is generally considered the most liberal (and volatile) of the 12 regional circuit courts — it sits primarily in San Francisco and presides over appeals from US district courts in the far west and some mountain states; the Fourth Circuit is considered one of the two most conservative federal appeals courts and presides over appeals from district courts in the Carolinas, the Virginias and Maryland.
I wrote about the frivolous legal challenge to the Ohio presidential vote earlier today. But real vote fraud and voting shenanigans seem to be taking place in Washington state.
John Fund writes about a real threat to voting rights in Washington state — efforts to “find” votes for the gubernatorial candidates in what had been a close election, which became closer every time King County looked at its in-box.
UPDATE: And for more fun with voter intent and attempts to obtain executive office through fraud, check out the coverage of San Diego’s controversial mayoral election here.
Sometimes, if a company ends up getting sued it’s its own blasted fault for failing to make a good product. That could be the case if Kia Spectra crashes start piling up.
The Insurance Institute of Highway Safety (home website here is a private organization funded by auto insurers that tests new and redesigned vehicles for crashworthiness. The IIHS tests are different than the ones that the National Highway Transportation Safety Authority (the agency within the US Department of Transportation) performs and have different rating systems primarily derived from the theoretical injury that the crash test dummy sustains in the IIHS test. IIHS ratings are Good, Acceptable, Marginal (in other words, barely meeting the test to keep the occupant safe) and Poor (read: car occupant will sustain injury in crash).
The Ohio Supreme Court’s Chief Justice threw out a lawsuit backed by Jesse Jackson and funded by a partisan Massachusetts election monitoring group. The lawsuit claimed that Pres. Bush unfairly won Ohio due to some indescribable fraud by his supporters as this excerpt from this article indicates:
The complaint questioned how the actual results could show Bush winning when exit-poll interview findings on election night indicated that Kerry would win 52 percent of Ohio’s presidential vote.
Without listing specific evidence, the complaint alleges that 130,656 votes for Kerry and John Edwards in 36 counties were somehow switched to count for the Bush-Cheney ticket.
The Ohio chief justice ruled that
From the ridiculous end of the sublime-to-ridiculous spectrum comes Curtis Blaine Storey, a man who lost his job and sued his employer for discriminating against him on the basis of national origin and religion. His employer gave him the sack for constantly displaying his Confederate flag at the workplace in violation of workplace rules.
Storey’s claimed national origin: Confederate Southern-American. His religion? The same. His lawyer’s rather inapt comparison, according to this article in the Legal Intelligencer, is that
Confederate Southern-Americans “endured a persecution similar to that suffered by the Highland Scots under English rule after the Jacobite uprising of 1745, or the Acadians of Canada.”
The district judge who heard this claim tossed it out. The Third Circuit agreed, upheld the dismissal but had a split vote.
The Australian state of Victoria, home to its second-largest city Melbourne, has a “religious vilification” law, which has now been tested and resulted in a conviction. The new criminals — pastors from the Catch the Fire Ministries. The crime, derogatory statements about Muslims and Islam (and very much so judging from this story).
Here is an excerpt from the judge’s ruling against pastors Daniel Nalliah and Daniel Scot:
Pfizer makes Celebrex, a cox-2 inhibitor pain medication, similar to Merck’s Vioxx. Merck voluntarily pulled Vioxx off the market when product tests revealed increased incidence of heart problems for patients who took Vioxx.
Today, Pfizer announced that a National Cancer Institute cancer prevention study found that Celebrex caused double the incidence of heart problems in patients who took 400-800 mg/day compared to non-Celebrex taking subjects. But another Pfizer study run by the NCI showed no increased risk. The 400-800 mg doses are four times the recommended dosages.
And it gets worse for Pfizer:
Ten years ago a mildly successful Republican state senator in New York won a huge upset — defeating the three-term incumbent governor of New York and Bill Clinton ally, Mario Cuomo. Part of the reason was probably Cuomo fatigue — he had been governor since succeeding Hugh Carey in 1983 and had been Carey’s lieutenant governor before that. But the biggest part of Gov. George Pataki’s victory was his promise to sign into law a statute reinstating the death penalty in New York.
Cuomo had vetoed numerous death penalty statutes. In 1994, New York had terrible crime, especially in New York City (which later dropped precipitously under Mayor Giuliani and Police Commissioner Ray Kelly) and New Yorkers wanted to send the message that the state needed to get tough on crime and, especially, ensure that cop-killers would not walk free after 20-25 years (this was a big issue for supporters of the bills).
True to his word, Pataki signed a death penalty bill. By most measures, it was about as progressive a bill as death penalty provisions could get: requiring instructing jurors of the consequences of their sentencing decisions, setting up an administrative group of lawyers that would set fee rates for defense attorneys in capital cases (to ensure better quality representation), and mandating direct appeals of capital convictions to the New York Court of Appeals (the state’s highest court). Ultimately, the statute seemed designed to insure the rights of the accused, be used only in extreme cases and be constitutional.
Winning a defamation case in the United States as a private person is thankfully and notably difficult. Winning a defamation case as a public person (someone well known in the relevant community or a public official) is extremely difficult unless there is an unmitigated lie, and nearly impossible if the case comes down to one person’s word against another’s.
Often defamation actions are covers — one person who may have done something wrong will protest his or her innocence, sue and accuser and use the pressure of a lawsuit to obtain a retraction of some sort. Those lawsuits are discouraged in California by the SLAPP (Strategic Lawsuit Against Public Participation) statute, which penalizes plaintiffs for using defamation actions as swords to prevent defendants from exercising First Amendment rights.
The Monk won’t hazard a guess here about the merits of this lawsuit that former US track superstar Marion Jones filed against Vincent Conte, the founder of the Bay Area Laboratory Co-Operative. That company is better known as BALCO, [alleged] steroid supplier to the superstars. Conte stated in interviews and in ESPN The Magazine that he personally witnessed Marion Jones inject steroids into herself and that he cut ties to her because she kept losing steroid paraphenalia on the road.
Jones has passed a lie detector test and testified to her innocence under oath before various athletic committees and in affidavits. But her ex-husband was thrown out of the 2000 Olympics for steroid use and her boyfriend is reputedly similarly dirty. On the other hand, Conte has never subjected his statements to the penalty of perjury.
The next frontier in discovery in civil litigation is electronic discovery. Plaintiffs’ attorneys want more of it, big businesses want less. [Disclosure: my law firm works for individual plaintiffs, corporate plaintiffs, individual defendants (albeit rarely) and corporate defendants]. What is electronic discovery? For a starting point, take this definition from a Business Week article describing a potential rule change in Federal lawsuits on a party’s duty to preserve electronic records:
An Ohio federal court judge held that punch-card balloting is not, in and of itself, racially discriminatory. The ACLU sued for a declaration that the punch card ballots in Ohio discriminated against minorities because minorities live predominantly in counties that use punch card systems. The full AP story is here.
The lawsuit alleged that most of the 92,000 ballots that did not have a vote for president recorded were punch card ballots.
Judge David Dowd held that:
The American Tort Reform Association today released its third annual Judicial Hellholes report — ATRA’s report on the worst court systems in the United States where “‘Equal Justice Under Law’ does not exist.”
Here is the press release from ATRA. The highlights, including the top nine worst areas (seven counties and two regions — all of West Virginia and all of South Florida) and a salute to Mississippi for its tremendous and far-reaching tort reforms are on this page. The full report is in PDF format here.
But there may yet be hope:
Major Hollywood studios, through their industry representative the Motion Picture Association of America, are suing more than 100 operators of computer servers that relay digitized movie files through on-line computer file-sharing networks, according to the Associated Press. The MPAA views the primary file-swapping services, eDonkey and BitTorrent as Napster-for-movies. The question is whether the argument will work.
Please allow me to introduce myself, I’m a man of . . . pseudonyms and a small blog.
Greetings. I am The Monk, founder and primary author of The Key Monk a small politics-and-sports blog I started in April and which my old high school buddy and I now work on in our spare time.
I am a lawyer in Texas who has run the law firm private practice gamut: large general practice firm to medium-size insurance defense firm (where I was on the frontlines in the asbestos wars) to a small commercial litigation boutique. No, I haven’t seen it all, but I’ve seen a lot. I now practice primarily appellate litigation, which I prefer because it is analytical and there’s no discovery in appellate litigation. I have also worked as a prosecutor in North Carolina, a pro bono lawyer in Boston and was a journalist of sorts as the sports editor and advertising manager of my college newspaper.
The best work I’ve done as a lawyer is easy to select: my pro bono work for the Shelter Legal Services Foundation (formerly the Veterans Legal Services Project) — a foundation dedicated to providing legal help to homeless and indigent veterans, battered women and other people in the Boston area who cannot afford most legal services.
Hopefully I can bring some perspective as a practicing attorney who has worked in a variety of legal settings. I look forward to contributing to Overlawyered.com — long one of my bookmarks (sycophancy alert!) — for the next week.
Point of Law Volokh