December 2002 archives


December 20-22 – Advance notice for The Rule of Lawyers. Our author’s new book still won’t reach most stores for a few weeks, but it’s garnering early notice in some prominent places. More than a month back Amity Shlaes of London’s Financial Times gave it a mention in a column profiling hyperactive New York Attorney General Eliot Spitzer (Amity Shlaes, “Local enforcer who has changed national laws”, Financial Times/Jewish World Review, Oct. 31). Last month it got discussed in the New York Times arts section (Daphne Eviatar, “Is Litigation a Blight, or Built In?”, New York Times, Nov. 23, second page). Wall Street Journal editorialist John Fund, recounting highlights of the career of Sen. Trent Lott for the paper’s online OpinionJournal.com, quotes the book’s discussion of how the lawyers suing the tobacco industry tried to exploit Lott’s family connection to attorney Dickie Scruggs (“A Tale of Two Bubbas”, OpinionJournal.com, Dec. 19).

Deserving special notice is Roger Parloff’s piece in The American Lawyer and other Law.com publications (“Authors Throw the Book at Lawyers”, Dec. 12), which calls the book “a focused, healthy, provocative, enjoyable read. … that rare book that, should it ever burrow its way into the opposing camp’s conversational pipelines, could really gum up the works.” Among other blushworthy excerpts: “Olson’s wry, amusing, libertarian take on the increasingly preposterous role that mass tort lawyers have assumed in our society — and in the funding of the Democratic Party — may not only spur many Democrats to reshuffle their standard talking points on those issues, but may even afford them some guilty, cant-piercing pleasures along the way. Speaking as a Democrat, I’d say the burgeoning scandal of the mass tort bar is our Enron.” (DURABLE LINK)

December 20-22 – Trial lawyers vs. thimerosal. Glenn Reynolds at InstaPundit (Dec. 19, three posts: # 1, 2, 3) has the latest on the flap over new federal curbs on lawsuits that claim damage to children’s health from thimerosal, a mercury-containing compound long used to preserve vaccines. According to the Centers for Disease Control (“Thimerosal & Vaccines“), citing Food and Drug Administration research, “There is no evidence to suggest that thimerosal in vaccines causes any health problems in children and adults beyond local hypersensitivity reactions (like redness and swelling at the injection site.)” This has not kept trial lawyers from urging parents of autistic children to view the compound as responsible for their children’s plight: Derek Lowe checked out law firms’ websites and found lurid examples (Dec. various dates — scroll down for more good posts). “Dr. Manhattan” has much more on the controversy (Dec. 18) and see also MedPundit (Dec. 5). For more on the recent legislative move to ensure that claims against thimerosal are incorporated into the general federal vaccine compensation scheme, see Margaret Cronin Fisk, “Suits Over Mercury-Containing Vaccines May Be Down for the Count”, National Law Journal, Nov. 27; “The Truth About Thimerosal” (editorial), Wall Street Journal, Dec. 5. (DURABLE LINK)

December 20-22 – Putting fraud proceeds to use. John Deokaran, a former insurance manager from Hammond, La., has pleaded guilty to taking more than $530,000 from Allstate Insurance by routing checks for imaginary claims to fictitious plumbing contracting companies that he controlled. Deokaran must make restitution or face prison time. “Among other things, Deokaran spent some of the money to pay for law school,” said Louisiana Attorney General Richard Ieyoub. (“AG Ieyoub: Hammond Man Must Pay Back Fake Claims Money Laundering Sentence Stipulates Full Restitution”, Office of AG Ieyoub, Aug. 20). (DURABLE LINK)

December 18-19 – The right not to be looked at? “The Chicago Cubs are suing the owners of rooftop businesses that overlook Wrigley Field and sell tickets to watch games, saying the establishments are stealing from the team.” (“Cubs sue owners of rooftop businesses near Wrigley”, AP/Indianapolis Star, Dec. 17). Update May 9, 2004: dispute settled with payments from rooftop business owners to team. (DURABLE LINK)

December 18-19 – “Asbestos fraud”. Extremely scathing column on the case of asbestos litigation, in which “the thirst for profits has led a small group of trial lawyers to erode the rights of legitimate victims while driving dozens of companies into bankruptcy and — worst of all — corrupting the court system. If Congress does not fix this problem, shame on it.” (Robert J. Samuelson, Washington Post, Nov. 20). (DURABLE LINK)

December 18-19 – British free-speech case. Robin Page, a columnist for the London Daily Telegraph, “has been arrested on suspicion of stirring up racial hatred after making a speech at a pro-hunting rally,” according to that paper. How had he done that? “Mr Page … told his audience that Londoners had the right to run their own events, such as the Brixton carnival and gay pride marches, which celebrated black and gay culture. Why therefore, he asked, should country people not have the right to do what they liked in the countryside[?]” Page, who was released on bail, “denied having made any comment that could be construed as racist during the address. … Gloucestershire police confirmed that they had arrested Mr Page on suspicion of violating Section 18 (1) of the Public Order Act, referring to stirring up racial hatred.” (Daily Telegraph, Nov. 20) (via WSJ Best of the Web) (DURABLE LINK)

December 18-19 – Mass disasters belong in federal court. Most mass litigation resulting from transportation accidents or other single-site disasters which result in the deaths of 75 or more people will henceforth have to be filed in federal court, according to the provisions of a bill quietly enacted by Congress this fall with the support of the Bush administration. The bill is favored by defendants in part because it restricts the ability of plaintiff’s lawyers to shop around for state court venues that are hostile to defendants or that afford “home cooking”. (Julie Kay, “Disaster Plan”, Miami Daily Business Review, Nov. 21). (DURABLE LINK)

December 16-17 – By reader acclaim: “Ex-jurors file $6 billion suit against ’60 Minutes'”. “Two former Jefferson County, Mississippi, jurors have filed a $6 billion lawsuit against CBS’ ’60 Minutes’ and a newspaper owner over comments about the size of jury awards in the county. Anthony Berry and Johnny Anderson said the news program defamed them in a segment that called the county a haven for ‘jackpot justice.’ Berry was among jurors who made a $150 million verdict in an asbestos case, and Anderson sat on a jury that awarded a $150 million judgment in a diet drug case. Wyatt Emmerich, who owns Emmerich Newspapers Inc., is also being sued: “In the program, Emmerich described those on Jefferson County juries as disenfranchised residents who want to stick it to Yankee companies”. Emmerich called his inclusion in the suit an attack on free speech. (AP/CNN, Dec. 10; Jerry Mitchell, “TV show on Miss. justice stirs suit”, Jackson Clarion Ledger, Dec. 10). Update Mar. 6, 2005: federal appeals court affirms dismissal of suit. (DURABLE LINK)

December 16-17 – “Bogus Claims Discovered in Fen-Phen Class Action”. “In a strongly worded opinion that questioned the ethics of two law firms and two doctors, the federal judge who is overseeing the $3.75 billion fen-phen diet drug class action settlement has found that dozens of claims of heart-valve damage were ‘medically unreasonable’ and that the doctors and lawyers responsible for the bogus claims must now be watched more closely. U.S. District Judge Harvey Bartle III said he was forced to issue an injunction because the settlement funds were set aside for ‘rightful claimants who suffered from fen-phen and not as a pot of gold for lawyers, physicians and non-qualifying claimants.'” Two New York law firms — Napoli Kaiser Bern & Associates and Hariton & D’Angelo — had submitted claims for their clients which included an unusually high rate of claimed serious heart valve abnormalities. Judge Bartle wrote that the practice of an expert employed by the Napoli and Hariton firms “resembled a mass production operation that would have been the envy of Henry Ford”. (Shannon P. Duffy, The Legal Intelligencer, Nov. 19)(see Sept. 27 and links from there). (DURABLE LINK)

December 16-17 – Ninth Circuit panel sniffs collusion in bias settlement fees. “The 9th U.S. Circuit Court of Appeals upended a multimillion-dollar race discrimination settlement Tuesday, citing suspicions that the attorney fees were the product of collusion. The split three-judge panel described the injunctive relief won in the case against Boeing Co. as ‘relatively weak,’ and said it and the $7 million in damages didn’t appear to justify more than $4 million in fees and a broad release of liability.” The case, purportedly on behalf of 15,000 black Boeing employees, had resulted in the company’s promise to institute changes in employment practices. However, Judge Marsha Berzon called such curative measures an “inexact and easily manipulable value,” and said they should not be viewed as creating a common fund for purposes of fee calculation. “Harrell, Desper, Connell, Hunter & Gautschi, the Seattle-based firm representing the class, had supplied many declarations, including one from the Rev. Jesse Jackson, supporting the terms of the settlement.” (Jason Hoppin, “9th Circuit Scraps Race Bias Settlement, Cites Attorney Fees”, The Recorder, Nov. 27). (DURABLE LINK)

December 13-15 – Back from hiatus. Our editor’s hiatus to handle personal business met with the happiest possible outcome, but as a result he’s facing new family responsibilities that will keep posting slow at best. Better some posting than none at all, at least, right? (DURABLE LINK)

December 13-15 – Using his own name a legal risk. The Atlanta Journal-Constitution‘s Bill Wyman shares his name with a somewhat well-known musician who played bass with the Rolling Stones. He was nonetheless unprepared when he received a letter from the musician’s lawyer suggesting that he might be violating the other guy’s rights by … well, by going on using his own name (Bill Wyman, “Will the real Bill Wyman please tune up?”, Atlanta Journal-Constitution, Nov. 14). (DURABLE LINK)

December 13-15 – Florida school shooting: the deep pockets did it. A Palm Beach County, Fla. jury has declared that a school board, an owner from whom a gun was stolen and the gun’s distributor should be liable for the classroom shooting of Lake Worth teacher Barry Grunow by 16-year-old student Nathaniel Brazill. “The jury didn’t find any liability for Brazill, who pulled the trigger. Brazill stole the unloaded gun and bullets from a cookie tin stashed away in a dresser drawer of family friend Elmore McCray.” (“Gun Company Must Pay Teacher’s Widow”, WPLG, Nov. 15). “Attorney Bob Montgomery, known for successfully spearheading the state’s efforts to sue Big Tobacco for $11.3 billion, said he hoped the gun case would achieve the same crippling results against the gun industry.” (“Gun distributor must pay in teacher’s death”, AP/Redding (Calif.) Record Searchlight, Nov. 15). Update Feb. 4-5: judge throws out case (DURABLE LINK)

December 13-15 – Law’s attraction for the bully. “[A] lot of hyper-glandular people are attracted to the legal profession because it looks like the perfect job for bullying other people. Plus, it pays well. Of course, the apologists for this sort of bad lawyering (mostly like-minded and acting lawyers) … argue that all that I am carping about is what is known as ‘zealous advocacy’ — which is next to godliness in the pantheon of ethical requirements. Of course, there is no ‘ethical requirement’ that justifies what some lawyers do in terms of name-calling, rules-flouting and frivolous motion-filing. It is simply a conceit that these lawyers rely on to transform their vices into supposed virtues.” (Jim McCormack, “Deconstructing Opposing Counsel”, Texas Lawyer, Oct. 25). (DURABLE LINK)

December 13-15 – Gotham’s trial lawyer-legislators. If it’s unusually hard for New Yorkers to obtain any legislative relief from their state’s lawsuit culture, our editor observes in an op-ed, maybe one reason is that numerous lawmakers are themselves trial lawyers, including Assembly Speaker Sheldon Silver of Manhattan (who previously practiced with controversial tobacco-beneficiary law firm Schneider Kleinick, and recently joined controversial asbestos/product liability law firm Weitz & Luxenberg) along with New York City Council members Michael E. McMahon and Domenic M. Recchia. (Walter Olson, “Legal Payola”, New York Post, Nov. 21, reprinted at Manhattan Institute site). (DURABLE LINK)

December 30, 2002-January 2, 2003 – Happy New Year. We’ll be back Friday.

December 30, 2002-January 2, 2003 – Updates. Among cases that continued to develop while our attention was elsewhere:

* A panel of the Fourth Circuit threw out (PDF) the $2 million punitive damage award against Duke University under federal sex discrimination law to Heather Sue Mercer, “who was allowed a walk-on spot as a kicker on the school’s football team but [was] treated differently than other players.” (see Oct. 13, 2000) (Leslie Brown, “Court voids kicker’s award”, Raleigh News & Observer, undated circa Nov. 16) (The Mat forums)

* The Ohio Supreme Court’s pro-litigation majority, shortly before voters turned it into a minority, dealt Ford Motor Co. a setback by ordering a new trial in a case where the automaker had rebuffed charges of “sudden acceleration” in its Crown Victoria model (see Jun. 6, 2000) (Alan Fisk, “Videotape Revives Lawsuit Against Ford Motor Co.”, National Law Journal, Oct. 21).

* An Alaska federal judge cut the punitive damage award against Exxon Mobil in the Valdez spill case from $5 billion to $4 billion; the litigation could still drag on for years more (see Nov. 15, 2001) (Jason Hoppin, “Exxon Valdez Award Reduced — but Only to $4B”, The Recorder, Dec. 10).

* In the controversy over baseball bats that are allegedly too powerful (see Apr. 19, 2002), a California state appeals court has rejected assumption-of-risk defenses and ruled that a college baseball player can sue the University of Southern California, “the Pacific-10 Conference, the National Collegiate Athletic Association and the makers of the Louisville Slugger bat on the ground that the company’s Air Attack 2 bat substantially increases the dangers of America’s pastime by letting the ball be smacked at hair-raising speeds.” (Mike McKee, “Bat Ups Chance of Baseball Injuries, Appeals Court Rules”, The Recorder, Dec. 24). (DURABLE LINK)

December 27-29 – Receivers in bankruptcy. “In the bizarre yet lucrative world of Enron’s bankruptcy, everyone seems to have a complaint these days. The $300-an-hour lawyers complain that the $500-an-hour lawyers are charging exorbitant fees. … Already, lawyers and other professionals have billed Enron close to $300 million in what some critics say is an unparalleled fee bonanza,” some of it going to the same high-priced professionals who advised the company before its fall. (David Barboza, “The Meter Runs in Enron Case, as the Lawyers Retain Lawyers”, New York Times, Dec. 25). Some of the lawyers have submitted expense requests that included liquor purchases; other practices include “marking up the costs of photocopies and faxes, and charging for clerical work at lawyers’ steep hourly rates”. (Otis Bilodeau, “Enron Lawyers Face Fee Cuts”, Legal Times, Dec. 10). (DURABLE LINK)

December 27-29 – California’s hazardous holiday. Chestnuts-roasting menace averted, cont’d: taking a cue from Berkeley and other Bay Area cities, air quality regulators in California’s Central Valley are proposing a ban on traditional wood-burning fireplaces in homes, as well as regulations on how existing ones can be used. “Under proposed rules that would take effect next year, most wood-burning fireplaces and stoves would be banned in new homes. Masonry fireplaces would have to be permanently disabled, converted to natural gas or upgraded to expensive soot-containing models before homes could be sold. Also, on bad air days during the winter, many Central Californians would be prohibited from lighting up their existing wood-burning stoves and fireplaces in a concerted effort to get the smoggy valley to comply with the Clean Air Act.” (Kim Baca, “California air regulators propose fireplace ban”, Sacramento Bee, Dec. 6)(see Dec. 24-27, 2001). Also in California, environmentalist lawyers using a bounty-hunting statute recently sued restaurants serving French fries on the grounds that the fries contain measurable amounts of acrylamide, a potentially hazardous substance generated when starch is subjected to heat. A complicating factor, however, according to the food-industry-defense Center for Consumer Freedom, is that “A nationwide study carried out in Germany has found that gingerbread contains seven times the amount of acrylamide found in French fries.” Better enjoy that holiday baking binge while it’s still legal. (“Just when you thought the holidays were safe”, Center for Consumer Freedom, Dec. 9; “French fry lawsuit-mongers unmasked“, Sept. 9). (DURABLE LINK)

December 24-26 – Merry Christmas. We’ll take a couple of days off to celebrate the holiday, and see you Friday. (DURABLE LINK)

December 24-26 – “Court Waives Deadline as ‘Reasonable Accommodation’ for Disabled Litigator”. We figured this would happen, and now it has: “An upstate New York judge has held for the first time that the courts must reasonably accommodate a visually impaired attorney who breached the time restrictions for submitting a judgment. … Finding that the ‘courtroom and court system constitute the trial lawyer’s workplace,’ and that the workplace ‘logically extends to the preparation of documents associated with litigation,’ [New York State Supreme Court Justice Robert] Julian held that [attorney Norman] Deep is owed an accommodation.” (John Caher, “Court Waives Deadline as ‘Reasonable Accommodation’ for Disabled Litigator”, New York Law Journal, Dec. 2). (DURABLE LINK)

December 24-26 – “Britain sued for millions by Mau Mau terrorists”. “The families of soldiers who fought the Mau Mau uprising in Kenya reacted with fury last night to news that former terrorists are planning to sue the British Government over their treatment after being taken captive.” (Daniel Foggo and Christian Steenberg, Daily Telegraph, Nov. 10). (DURABLE LINK)

December 23 – Lawyers’ advertising, 25 years later. In 1977, by a 5 to 4 majority, the U.S. Supreme Court ruled that lawyers have a constitutional right to advertise for clients. A retrospective by the National Law Journal‘s Mark Ballard mentions some of the resulting low-water marks of taste, including “the one where 300 pounds of lawyer emerges from the water to the strains of ‘Swan Lake’ bedecked in gold chains and carrying a chest of cash with the message that he’ll bring the treasure home to you,” the one featuring “Robert Vaughn, former ‘Man from U.N.C.L.E.,’ in suspenders, sternly promising that whichever attorney was hired in that particular market was so fearsome that otherwise recalcitrant insurance companies will roll over and pay up big bucks,” and — no specifics given, alas, but deplored by a former Florida bar president — episodes in which lawyers have “drive[n] hearses to shill no-frill wills” and sponsored cars in demolition derbies to promote personal-injury practices. (Mark Ballard, “Coming to Terms With the $20,000 Ad”, National Law Journal, Sept. 25; “The Ad-Made Man and the Old-Line Firm”, National Law Journal, Oct. 3; “The Little Ad That Changed Everything”, National Law Journal, Oct. 10). (DURABLE LINK)

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