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Peter Morin

Deal or Raw Deal?

by Peter Morin on February 28, 2008

Howie Mandel’s stunningly successful Deal Or No Deal television game show had an amusing little side-show.

Viewers were invited to play the “Lucky Case Game” by choosing which of six on-screen gold briefcases was the lucky case. Viewers submitted their choice on the Internet for free or through a text message that cost 99 cents. At the end of the program, the winning briefcase was revealed, and the winners were entered into a random drawing. The winner of that drawing received a prize of as much as $10,000.

One enterprising Georgia lawyer claims that this amounts to illegal gambling and has filed a class action lawsuit to obtain refunds of the 99 cent text message fees (plus attorneys fees, of course):

When a Forsyth County couple sent 99-cent text messages trying to win a prize on the NBC game show “Deal or No Deal,” they engaged in illegal gambling and should get their money back, a lawyer told the Georgia Supreme Court on Tuesday.

So should all other Georgians who sent text messages in the show’s “Lucky Case Game” and lost, lawyer Jerry Buchanan said. A judge hearing the case has estimated the bounty could reach tens of millions of dollars.

The case has been report to the state Supreme Court for the answers to two questions:

1. Does Georgia law allow losers of an illegal lottery to recover the money they lost?

2. And, if so, may the losers recover that money from the lottery’s promoter or organizer?

No mention of the third question.

(Atlanta Journal & Constitution,, Feb. 27)

Since the suit was filed, the game has stopped.


My Condolences, My Card

by Peter Morin on February 28, 2008

The mother of a teen killed by a drunken driver was standing at his casket during his wake when lawyers Robert D’Amico and Jimmy Burchfield sidled up next to her and offered their services.

Kathleen Gemma filed a complaint with the Supreme Court’s attorney disciplinary board, saying the two should have left her alone while she was saying her last goodbyes to her son Anthony Gemma. Gemma said one of the lawyers talked about his billboard.

D’Amico and Burchfield say that Gemma brought up the idea of pursuing legal action.

Not difficult to figure out which story is true here, is it?
(Providence WPRI, February 26)

In the height of irony, the wesbite for the law firm of D’Amico & Burchfield contains this slogan:

We’ll Take Care of You Like Family Would

N.B. — This story recently ran on WPRI television, but Anthony Gemma’s accidental death occurred in December of 2006. There is no public report of whether any disciplinary action was taken against either lawyer.


A New Suspect Class?

by Peter Morin on February 27, 2008

Is Southwest Airline discriminating against the Pretty Girls again?

“I think they were just discriminating against because we were young decent-looking girls. I mean, nobody else on the plane looked like us except us,” she said. “[The flight attendants] were like older ladies. We were younger. Who knows, they could have been just jealous of us because we were younger.”

You can’t make this stuff up.
(, Feb. 27)

H/T Wizbang (with video)


Damnum Absque Injuria?

by Peter Morin on February 27, 2008

Sean Dubowik is a Phoenix strip club owner who had the words “Hot Rod” tattooed to a most private (and sensitive) part of the male anatomy.

This feature was noted with some degree of amazement, although probably not by the type of person Dubowik intended. His gall bladder surgeon, one Sean Hansen, made the observation during surgery prep, and made use of his cell phone to record the artwork. He then showed it around the hospital a bit, resulting in one of the surgical staff (the one with the conscience) calling Dubowik.

Dubowik said he’d gotten the tattoo on a $1,000 bet.

“It was the most horrible thing I ever went though in my life,” Dubowik said. He said he chose Mayo Clinic for treatment because his mother had five surgeries there.

“They were supposedly the best of the best. I have no complaints about the medical care I was given,” he said. “But now I feel violated, betrayed and disgusted.”

Query: can one who has his penis tattooed with “Hot Rod” on a $1,000 bet convince a jury — any jury — that he could be “violated, betrayed and disgusted”?
(AP, Dec. 17, 2007)


Not Not Guilty Guilty!!

by Peter Morin on February 27, 2008

Overlawyered reported last summer on William Ross’s findings about the double billing of clients, and Ted opined on it at Point of Law.

Cameron Stracher’s book (his second) entitled Double Billing: A Young Lawyer’s Tale Of Greed, Sex, Lies, And The Pursuit Of A Swivel Chair is careful not to assert that there was double billing going on in his fictional New York white shoe law firm, but there was certainly plenty of churning, redundant/unnecessary work, etc., the ethics of which is comparably impugned by the principles behind the rule against double billing.

In light of Judge Matsch’s repudiation of Big City trial counsel’s conduct in the Medtronic Case, I got to thinking about unethical lawyer conduct, and asked myself this:

Aside from the obvious business remedy available to the client, does trial counsels’ misconduct excuse the client from paying their bill (or enable them to recover the fees paid)? Does the answer to that depend on whether the client was complicit in the unethical strategy?

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U. S District Court Judge Robert Matsch recently got so infuriated by the conduct of McDermott, Will and Emery attorneys Terrance McMahon and Vera Elson that he overturned a jury’s $51 million verdict, then ordered the lawyers to pay the fees and costs of the opposing lawyers, a sum that could total several million dollars. (Denver Post, Feb. 25)

From the decision (Medtronic Navigation, Inc. v. BrainLAB Medizinische, 2008 WL 410413):

In essence, the response from the plaintiff and MWE, through new counsel, is that the Court had the obligation to stop any trial conduct that stepped over the line of zealous advocacy. In short, they argue that they should not be held responsible for what they were able to get away with during the trial presentation. The adamant denial that there was any abuse of advocacy in this case is in disregard of what this Court has already concluded and displays the same arrogance that has colored this case almost from its inception. Throughout these proceedings Medtronic and the MWE lawyers have demonstrated that when they are faced with adverse court rulings, they proceed undeterred, with only superficial observance of the court’s determinations. Such conduct supports the conclusion that after the Markman rulings, Medtronic’s primary objective in pursuing this litigation was to put economic pressure on its competitor in the market.

Medtronic’s counsel proceeded cavalierly, with reckless indifference to the merits of Medtronic’s infringement claims. The continued prosecution of a claim after its lack of merit has become apparent warrants sanctions under § 1927. At trial, MWE’s conduct was in disregard for the duty of candor, reflecting an attitude of “what can I get away with?” Throughout the trial, the MWE lawyers artfully avoided the limitations of the patent claims and created an illusion of infringement. They did so with full awareness that their case was without merit.


Outsourcing, With a Kicker

by Peter Morin on February 25, 2008

In the state of Mississippi during the last 5 years, 27 law firms have been retained by Mississippi Attorney General James Hood to purse state lawsuits on contingency. Those firms have collectively donated more than a half-million dollars to Hood in the last two election cycles. Apparently, the legislature is troubled by this combination of for-profit motivation and campaign fundraising, and has passed a bill to pursue competitive bidding before signing contracts of more than $500,000 with private lawyers. It also requires a review board to examine contracts, and it limits contingency fees to $1 million.

Hood isn’t pleased — and the WSJ has his number:

Should state Attorneys General be able to outsource their legal work to for-profit tort lawyers, who then funnel a share of their winnings back to the AGs? That’s become a sleazy practice in many states, and it is finally coming under scrutiny — notably in Mississippi, home of Dickie Scruggs, Attorney General Jim Hood, and other legal pillars
This kind of quid pro quo is legal in Mississippi and most other states. However, if this kind of sweetheart arrangement existed between a public official and business interests, you can bet Mr. Hood would be screaming about corruption. . . . A decision to prosecute is an awesome power, and it ought to be motivated by evidence and the law, not by the profit motives of private tort lawyers and the campaign needs of an ambitious Attorney General.”

That leaves a mark.

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A family court judge who was shot in his chambers by a man whose bitter divorce he was handling has sued the gunman, seeking damages totaling more than $100,000.

…Mack’s civil lawyer, Mark Wray, said the suit “mystified” him. Mack has long since lost the fortune he earned from the pawn shop, and his client’s 9-year-old daughter is getting the last of it, Wray said.

Mystified, is he? Maybe it has something to do with the conspirators.
(News Observer Feb. 23)


Whistle While You Work

by Peter Morin on February 25, 2008

The “National Whistleblower Center” wants folks to send a message to their congresspeople protesting the lack of whistleblower provision in the new Consumer Product Safety Commission reform bill (S.2045):

“The CPSC reform bill needs to provide vital protections for honest employees who report safety violations–such as toxins in toothpaste and poisonous lead in our children’s toys. Without these protections, whistleblowers may not come forward to report dangers of products until it is too late.”
(Whistleblower Blog)

What will those damn Democrats do next!?

Clarification: In my haste to produce some content before I got too busy this morning, it seems that I failed to project my usual degree of irony and sarcasm on this particular post — and in all candor, I did not check archives to see what OL had published before. The Whistleblower Center action alert that the Whistleblower Blog links to reports that “The House version of the CPSC reform bill does not include whistleblower protections,” and exhorts supporters to “Take Action Today! It is crucial that you contact your representative and let him/her know that you expect them to support American workers and families – NOT the interests of big business.”

Now that I have had time to check Thomas, it appears that there is no House version of the bill after all, and therefore the “action alert” is (characteristically?) deceptive.

Correction: (I’ll get this one right if it kills me) — Ted corrects me that a House version did in fact pass the House in December.

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Assuming you are a litigator, tort reform has crippled plaintiff’s practice. Hanging out your own shingle is more difficult than ever before. Unless you have an established reputation, you’ll find very little business “coming in the door.” You’ll need to market yourself extensively. If you can survive and thrive, all the power to you.
( )

Sounds like progress to me.


No preferred Lies

by Peter Morin on February 25, 2008

Elaine Joyce is a highly competitive female amateur golfer who wants to play with the guys. But she was barred from playing with her father in a Men’s Member-Member tournament. This has left her “ostracized, marginalized, humiliated, embarrassed and denounced,” according to her federal lawsuit.

But wait:

Joyce said she began to feel hostility after she filed the state discrimination complaint in July. One Saturday, after a match-play club championship, she walked into the clubhouse after the first round.

“There were 20 to 25 guys in there,” she said. “And as soon I walked in the door, everything stopped. Silence. ‘There she is. That’s the woman. That’s the problem.’ Stupid stuff like that.”

Joyce compared the experience to her fight to play with the Forty Thieves. After the town acted in that case, it took 18 months for her to be admitted as a member. Joyce said some members of the group were appalled and let her know it. One said he would play only if she played naked. Others walked off the course when paired with her. Some refused to speak to her during rounds.

(NYT, Feb. 19)

I’d prefer to play with a single digit lady than a 20+ old guy. But can I still tell my off-color jokes?


Cruel and Unusual Sex

by Peter Morin on August 11, 2006

Elevating the quality of prisoner-initiated Constitutional claims, Boxer X claims that he was subjected to cruel and unusual punishment when he was “forced” by a female guard to masturbate in front of her.

The 11th Circuit denied rehearing en banc a review of the lower court’s decision that this did not constitute cruel and unusual punishment.



The First Circuit Court of Appeals recently vacated a “substantial” jury verdict in a defamation case against The Boston Phoenix, finding that the lower court was too quick to earlier rule on summary judgment that the plaintiff, a Maryland state prosecutor, was not a “public figure” for purposes of libel law.

Judge Selya chose an interesting metaphor to open the Court’s opinion:

“The oenologist’s creed teaches that we should drink no wine before its time. Much the same
principle applies to summary judgment; it is a deliciously helpful device if properly timed, but one that can leave a sour taste if brought to bear on an insufficiently fermented record.”

Orson Wells introduced us to that motto on behalf of that tower of oenological perfection, Paul Masson. But like the wine of Paul Masson, I find Judge Selya’s stretching of the metaphor a little dry on the palate.

The Legal Reader points us to Court T.V.’s video of Attorney Joseph Caramango’s stunning display in the courtroom as he tries to explain why he was an hour late for a jury trial in which his client was facing life imprisonment. It wasn’t the five shots of tequila he had at 4 am the night before. It wasn’t the beer he admitted having at lunch the day before during jury selection.

Video is long and painful — a classic Schadenfreud.


Court Compels Lunch

by Peter Morin on August 9, 2006

Judge Pendleton Gaines of he Superior Court of Maricopa County, Arizona must be a popular jurist indeed. Here, he grants plaintiff counsel’s Motion to Compel Acceptance of Lunch Date, ruling:

“The Court has rarely seen a motion with more merit. The motion will be granted.

The Court has searched in vain in the Arizona Rules of Civil Procedure and cases, as well
as the leading treatises on federal and Arizona procedure, to find specific support for Plaintiff’s
motion. Finding none, the Court concludes that motions of this type are so clearly within the
inherent powers of the Court and have been so routinely granted that they are non-controversial
and require no precedential support.

The writers support the concept. Conversation has been called “the socializing
instrument par excellence” (Jose Ortega y Gasset, Invertebrate Spain) and “one of the greatest
pleasures in life” (Somerset Maugham, The Moon and Sixpence). John Dryden referred to
“Sweet discourse, the banquet of the mind” (The Flower and the Leaf)….”

More light-heartedness follows. (The Legal Reader, Aug. 8)

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When two sisters engage in a battle over control of their mother’s estate, it can only get uglier when one trustee sisterattempts to have her husband’s law firm appointed as successor trustee. But it helps with the Court if said firm isn’t brazenly overbilling the estate in the process:

“Greenberg Traurig billed the estate almost $130,000, which is now at issue in a pending contempt motion. Sankel claims the amount should be repaid to the trust since Greenberg Traurig’s services were retained for the personal benefit of Linda Spector and Jacobs, whom she eventually married.

In the contempt motion, Sankel also noted the disparity between the fees paid to Greenberg Traurig and his own firm in the course of the dispute. He noted that his firm had billed the trust $22,000 in the same time period. He is requesting invoices from Greenberg Traurig to back up charges, some of which he claims were “wholly frivolous.”

(, August 8)

It’s all in a day for notorious white supremacist and convicted felon Matthew Hale, who, once convicted of attempting to arrange for the murder of a federal judge, then did what any ordinary American convict would do — sued his lawyer for malpractice.

These guys are nothing like Joe Jamail, but honestly, does this scene make you want to be a jurist?