December 31, 1999-January 2, 2000 — New safety rule likely to increase death toll. “The National Transportation Safety Board — acting out the Clinton Administration’s desire to inject children into every political issue — declared 1999 the ‘Year of Child Passenger Safety'”. The Federal Aviation Administration accordingly reversed its longstanding policy and decided to prohibit children under the age of two from riding in their parents’ laps (a practice that saved parents the price of a ticket). Instead they’ll have to be placed in separate child restraint seats. But the cost of the additional tickets will induce many families to drive rather than fly, and an earlier FAA study found that “while mandatory child restraints might prevent five fatalities over the next 10 years, an estimated 82 children and adults would perish on the nation’s roads as families sought cheaper transportation alternatives.” (“The cost of toddler restraints” (editorial), Detroit News, Dec. 23; Jacob Sullum, “Little Restraint” (syndicated column), Reason Online, Dec. 22)
December 31, 1999-January 2, 2000 — NYC subtenants from hell. Susan Teeman’s gruesome ordeal in the New York City housing courts began when she gave her subtenants Stuart and Susan Levy one month’s notice that she needed to reclaim from them her $550-a-month, one-bedroom apartment on E. 76th St. That was back in 1985. It took eleven years of litigation to get them out, followed by a few more years’ worth of tag-on court proceedings, during which time they engaged in tactics that judges labeled “outrageous,” “abject nonsense,” “vexatious” and “reprehensible”. Don’t read this one unless you want to get upset (Dareh Gregorian and Erika Martinez, “Subtenants from Hell Gave Her a New Lease on Strife”, New York Post, Dec. 30)
December 31, 1999-January 2, 2000 — More assertions of link liability. In a suit filed in California Superior Court in Santa Clara County, lawyers for the DVD Copy Control Association are seeking a restraining order against some 72 programmers and websites, attempting to block dissemination of software that allows consumers to de-encrypt the digital movie format for purposes of copying. The suit targets not only websites which make the software available on their servers for download, but also popular discussion sites such as Slashdot and Usenet archive Deja which have allowed the posting of web addresses where the software may be found. “If linking to data is ever ruled a liable offense, then the Web is effectively worthless. I think the courts will recognize this,” said Rob Malda, one of the founders of Slashdot. On Wednesday Judge William J. Elfving denied the request for a temporary restraining order; a hearing on the request for a permanent order is scheduled for January 14. (Slashdot reporting and discussion; Chris Oakes, “Case Hinges on Reverse Hack”, Wired News, Dec. 28 and “DVD Round One Goes To Hackers”, Dec. 29; Mike Musgrove, “Suit Targets DVD-Copying Software”, Washington Post, Dec. 29, link now dead).
December 31, 1999-January 2, 2000 — “Love contracts” spreading to U.K. An unnamed British company is following the lead of some U.S. firms by drawing up “love contracts” for employees to sign if they become romantically involved with co-workers, to protect the company from later charges of sexual harassment (see Dec. 3 commentary). The BBC says there’s a question “whether such contracts will rile employees by killing off what many see as a harmless facet of office life”. (“Beware of the ‘love contract'”, BBC News, Dec. 30).
December 31, 1999-January 2, 2000 — Free expression, with truth in advertising thrown in? A federal judge ruled on Tuesday that Roseville, Minn. personal-injury attorney Todd Young has a constitutional right to fly the pirate flag, the Jolly Roger, outside his office to advertise his practice. Town officials had objected to the flag as a banner prohibited by its advertising-sign ordinance. Municipal attorney Joel Jamnik said the town was not planning an appeal but would instead attempt to reword its ordinance more carefully to remedy what the judge saw as impermissible vagueness. “These are essential rights,” said Young. (John Welsh, “Avast, ye swabs! Jolly Roger to fly freely in Roseville”, St. Paul Pioneer Press, Dec. 29)
December 29-30 — Class action toy story. Toys-R-Us, Mattel, Hasbro, and other toy companies agreed this year to settle antitrust charges brought by private class action lawyers and the attorneys general of 44 states, which accused them of having conspired to allow only a limited selection from the manufacturers’ toy lines to be sold in warehouse discount stores (for example, toys destined for those stores were often grouped in “combination packs” for customers willing to buy several at a time). The terms of the settlement included $3.25 million for the private lawyers, $1.8 million to be recycled into the budgets of the state AGs, $335,000 for the National Association of Attorneys General, and $12.8 million to be distributed among the states for children’s programs. In addition, the companies agreed to furnish toys from their inventory with a nominal value of tens of millions of dollars to be distributed to poor kids at Christmas, an agreement that gave the state attorneys general the perfect occasion for issuing self-congratulatory press releases (samples: Calif. (link now dead), N.Y., Texas, Tenn., Idaho, Iowa). “At Christmastime in 1998, 1999 and 2000,” notes Forbes‘s Dan Seligman, “the attorney general of just about every state gets to play Santa Claus, and has a chance to dwell publicly on the wonderfulness of attorneys general who bring toys to the kids.” Meanwhile, actual customers who bought toys during the period get $0.00 — it would be impractical to identify them, explains the settlement notice — and some even suspect those customers will foot the bill in the end as companies pass on the cost of such litigation in higher prices. (Dan Seligman, “Mutant Ninja Lawsuits”, Forbes, Oct. 18).
December 29-30 — Down repressed-memory lane I: costly fender-bender. A jury in Milford, Connecticut has ordered George B. Daniels to pay Andrea Karlsen more than a half million dollars over a low-speed auto collision that, Karlsen’s attorney argued, caused her post-traumatic stress disorder by bringing back memories of childhood abuse. Daniels, himself a sitting judge in New York who has been nominated to the federal bench by President Clinton, acknowledged that the mishap on the Boston Post Road in Orange, Ct. on Dec. 29, 1991 had been his fault. “But he testified that the accident was so minor that neither an ambulance nor a tow truck was needed afterward”. Plaintiff’s attorney Loren Costantini, however, sought more than $6 million in damages, arguing that the incident had “triggered post-traumatic stress disorder in Karlsen and memories of childhood abuses so severe that she became ill — both mentally and physically — and unable to work as a flight attendant.” Ms. Karlsen, a former model and Playboy bunny, became distraught after the verdict, “screaming and crying in disappointment that she was not awarded more money”, and yelling at defense attorney John Costa, “You’re a murderer. He tried to kill me.” (Heather O’Neill, “$523k awarded for fender bender”, Connecticut Post, Nov. 6; “Judge must pay accident victim $500,000”, AP/Norwalk, Ct. Hour, Nov. 7 (not online); Thomas Scheffey, “All in her head”, Connecticut Law Tribune, Nov. 16).
December 29-30 — Down repressed-memory lane II: distracted when she signed. A Canadian judge has granted a woman’s request to nullify a 1990 separation agreement with her ex-husband which she had signed under mental duress; the duress was occasioned, she said, by reemergent memories of childhood sexual abuse. Accepting the woman’s claim of incapacitation, Mr. Justice Donald Taliano found that she was “so overcome by mental illness that she was incapable of dealing with even the simplest of life’s demands, let alone the complexities of a separation agreement” and ordered her ex-husband to repay her $180,000 (Canadian), although his earning capacity is limited since he is retired and in the early stages of Alzheimer’s disease. (Donovan Vincent, “Man ordered by court to repay ex-wife $180,000”, Toronto Star, Sept. 7, not online)
December 29-30 — Just like the Bourbons. Ah, those editorial-writers at the New York Times, who for so long have learned nothing and forgotten nothing. “It has become fashionable to depict the proliferation of lawyers and lawsuits as something negative — both symptom and cause of a self-indulgent ‘culture of rights'”, rumbles the paper’s Dec. 24 editorial. “This fashion may pass… At the moment, though, Congress and the current Supreme Court seem determined to exploit this misconception in mischievous ways…” There in a nutshell you have the Times‘s editorial philosophy on the litigation issue: sure, Americans may be dragging each other through the misery of courtroom battles in “proliferating” ways, but it’s a “misconception” to view that as “something negative”. (“The Expanding Reach of Civil Rights”, Dec. 24, not online)
December 29-30 — Spreading to Australia? “Children exposed to their parents’ smoking may soon begin suing them”, predicts a prominent Australian lawyer. Note, however, the real financial target: “Children would be reluctant to bring such claims, he conceded, but not if the parents’ home and contents insurers were the opponents.” Indeed, it’s not hard to imagine some parents conniving at suits against themselves as a way of scooping cash for their offspring out of their homeowners’ policies. Attorney Eugene Arocca also predicts Australia may follow the lead of some U.S. courts which count smoking as a factor against parents in child custody battles. (Darwin Farrant, “Children may sue smoking parents”, The Age (Melbourne), Dec. 27 (via Junk Science)). (more on smoking and custody: SmartDivorce.com, TOTSE, ASH) (& see Jun. 3-4, 2002).
December 27-28 — “Year’s Weirdest News”. News of the Weird columnist Chuck Shepherd includes two litigation stories in his ten-oddest list this year. (“A Look At…The Year’s Weirdest News”, Washington Post, Dec. 26). Under the heading “Now That’s a Return on Investment”: “A jury in Birmingham, Ala., ruled in favor of Barbara Carlisle and her parents in their lawsuit against two companies that overcharged them $1,224 for two satellite TV dishes, awarding the threesome $581 million. After cries of ‘jackpot justice,’ the judge slashed the award to a mere $300 million.” (quoting Associated Press, May 11, Aug. 27) And: “A judge in Tampa denied tobacco-litigation lawyer Henry Valenzuela his $20 million share (out of $200 million in legal fees from the state’s 1997 settlement with cigarette companies) because he was late in paying his $2,500 share of a litigation expense”. (Larry Dougherty, “Lawyer won’t get tobacco money”, St. Petersburg Times, July 27). The $200 million refers to the fee obtained by the former law firm of Yerrid, Knopik & Valenzuela; collectively, law firms were awarded $3.4 billion for representing the state of Florida.
December 27-28 — Zero tolerance roundup. Scott Hogenson, writing at Conservative News, recalls the time a sixth-grade classmate in his small Minnesota town stabbed him in the hand with a pencil. “I probably deserved it. Perhaps I teased her one too many times”. Both parties have since grown into happy, productive adults; how lucky they are that it happened thirty years ago, at a time when the consequences for her did not include a serious police record, expulsion, etc. (Scott Hogenson, “Assault With a Deadly Pencil”, Conservative News, Dec. 10.) In Windsor, Ont., the Children’s Aid Society promptly launched an investigation after an 11-year-old girl turned in a story for her 6th grade class about a fictional family with a violent father. “This accusation was just thrown at me,” said the girl’s mother, Laura Scalia, who is single, describing the visit of an official who showed up at her door. “No effort was made to substantiate who I or my daughter are….It seems so easy for them to screw someone’s life up.” (Don Lajoie, “11-year-old’s school essay sparks children’s aid probe”, Windsor Star/National Post, Dec. 17).
The Christian Science Monitor says a zero tolerance policy may work best if it “allows principals some leeway to define what ‘zero’ is”, which might seem to retreat from the original concept, no? (Peter Grier and Gail Russell Chaddock, “Schools get tough as threats continue”, Nov. 5.) And we recently stumbled across a site entitled “Zero Tolerance = Zero Common Sense = Zero Justice“, which hasn’t been updated much lately but has scores of links and clips from the period 1996-98 documenting the trouble kids were getting into when found in the possession of lunchbox bread knives, water pistols, cough drops, and so on. (H. Churchyard site).
December 27-28 — “Bug lawyers” prosper. The Montgomery, Ala. law firm of Crosslin, Slaten & O’Connor has found a happy niche representing exterminating companies. (Its website: www.buglaw.com.) Several of its attorneys have themselves become certified pest control operators, and the firm has its own plane, which it dubs Bug One, to reach clients quickly. “Reflecting the general trend toward litigiousness, pest control operators are being sued more.” (Richenya A. Shepherd, “‘Bug Lawyers’ Invade the South”, National Law Journal, Dec. 13).
December 27-28 — You shoulda flunked me! Derek Boult, a former student at Murrietta Valley High School near Riverside, California, has sued the school and his football coach, saying he was improperly given passing grades and promotions as part of a policy of according favorable treatment to student athletes. The lawsuit, which also names the school’s former football coach, charges that overly lenient grading deprived Boult of the right to an education as provided by the state constitution. Eventually Boult proved unable to keep up the requisite minimum 1.5 grade point average, had to switch to a remedial school and was unable to graduate with his class. His attorney, Anthony D. Weber, of Palm Desert, charges that the school should have given him failing grades at an earlier point and taken him off the team. “He deserved to have bad grades,” he said. “He didn’t deserve to play football.” (Daniel G. Jennings, “Athlete Sues School for Letting Him Pass”, San Francisco Daily Journal, Oct. 25 — not online)
December 27-28 — “Few Settlement Dollars Used for Tobacco Control”. The year’s most durable shock-the-naive story: states are spending only a minor share of their enormous tobacco-settlement booty on causes dear to anti-smoking activists, such as those billboards and TV ads that hector smokers and vilify cigarette executives. “Of the 23 states that have decided how to spend their money, the majority appear to view the dollars primarily as a hefty new revenue source to be spent on whatever the state needs.” How many serious observers imagined it would be otherwise? In Rhode Island, putatively in the vanguard of children’s-health activism as the first state to sue lead paint makers, “teen smoking has increased from 21% in 1993 to 34% in 1999,” if the numbers from a state Health Department survey are to be believed. (Alissa Rubin, “Few Settlement Dollars Used for Tobacco Control”, Los Angeles Times, Dec. 25).
December 27-28 — 150,000 pages served on Overlawyered.com. Thanks for your support!
December 23-26 — Christmas lawyer humor. A selection culled from around the web:
“Merry Christmas from the Legal Department” (Yuletide wishes consisting entirely of disclaimers):
Though we, the “Greetor,” wish you well
In our Holiday Entreaty,
We limit all your claims, Dear Friend
(Hereinafter called the “Greetee”).
We wish you dreams of Sugar Plums
And dancing Christmas Lights,
But if these Fancies come to Naught
You have no Vested Rights… ” (more)
— LaughNet; attributed to Edward G. McManus.
“What hath a lawyer to do with Christmas? For Christmas is a joyous festival of loving and giving, in a dark, cold time of year; when we forget ourselves in all kinds of silliness as we try to forget our troubles, a time of wild abandon learnt from our pagan ancestors, and at bottom hath no logick to it. Whereas your lawyer is a crabb’d and serious fellow, who hath studied his eyes out reading the Law and aspires to be old and blind before his time, and knows no more of wild abandon than a fence-post; a sober black-coated mole of a man, who’s always teaching us to be ungenerous, and always writing mean-spirited documents that turn square corners and won’t give a poor fellow an inch; who wouldn’t give away one of his old scintillas without he gets a proper quid pro quo for’t. He wouldn’t know jollity if it bit him, and never, never can forget himself; and if a handsome wench should catch him ‘neath the mistletoe would cavil and demur and plead in bar ’till he’s made her sign a solemn oath that she won’t sue him for sexual harassment….” (more)
— “Joys of the season for divorce lawyers” by Virginia attorney Richard Crouch. Notwithstanding the puckish tone of the above, the piece goes on to offer serious and sensible advice on how to avoid letting holiday strains turn someone you love into a potential client of the divorce biz.
“The night before Christmas” (attorney’s version): “Whereas, on an occasion immediately preceding the Nativity festival, throughout a certain dwelling unit, quiet descended, in which could be heard no disturbance, not even the sound emitted by a diminutive rodent related to, and in form resembling, a rat;…” (link now dead) (HumourNet, Dec. 6, 1995, from NEA Journal, Dec. 1960)
“A lawyer’s Christmas” (same idea): “…Hosiery was meticulously suspended from the forward edge of the woodburning caloric apparatus… ” (more) (TnT Web Design site)
“Restructuring at the North Pole” “As you know, the eight maids-a-milking concept has been under heavy scrutiny by the Equal Employment Opportunity Commission. A male/female balance in the workforce is being sought….The four calling birds will be replaced by an automated voice mail system with a call waiting option. An analysis is underway to determine who the birds have been calling, how often and how long they talked….The two turtle doves’… romance during working hours could not be condoned. The positions are therefore eliminated….Regarding the lawsuit filed by the attorney’s association seeking expansion to include the legal profession (‘thirteen lawyers-a-suing’) action is pending.” (more) (author not known, Don Tolin webpage)
December 23-26 — “Trial lawyers on trial”. Trevor Armbrister’s outstanding new Reader’s Digest article scrutinizing the plaintiff’s bar is now online at the Digest website. It’s got drop-your-jaw numbers on campaign contributions, hard-hitting coverage of the tobacco-fee scandal and the Florida and Maryland laws retroactively expanding tobacco liability, a concise summary of the Norplant and breast-implant outrages, new and pithy quotes from such keen observers as John Langbein, Stuart Taylor, Jr. and Marc Arkin, a few words from the editor of this site on the need for a loser-pays rule, and much, much more. Don’t even think of missing this one (Trevor Armbrister, “Trial lawyers on trial”, Reader’s Digest, Jan. 2000).
December 23-26 —“Fen-Phen Settlement Might Be Off”. Not for the first time, lawyers rely on the Mississippi courts to get unusually favorable results that they hope to roll out nationwide. This Associated Press article also quotes this site’s editor (who’s clearly on a roll today) (Paul Payne, AP/Excite, Dec. 22, link now dead)
December 23-26 —“In race to sue Microsoft, some trip”. In the legal siege of Redmond, “the race to sue — and stake a claim in this hoped-for gold rush — is producing some memorable legal bloopers,” reports David Segal of the Washington Post. “Lawyers behind one suit filed in a California state court, for instance, seemed momentarily confused about Microsoft’s core business. The complaint drafted by San Diego’s Krause & Kalfayan suggests at one point that the software maker is actually competing in the generic drug market. ‘These arrangements have enabled Microsoft Corporation to exclude other developers of Intel-compatible PC operating systems from obtaining the supply of such generic drugs’ active pharmaceutical ingredient (“API”),’ the complaint states on Page 2.” Partner James C. Krause sheepishly admits that the firm copied out the pleadings from an earlier class action and forgot to change the relevant verbiage. And it wasn’t the only law firm caught up that way: the suit filed by the law firm of Shelby & Cartee in Birmingham, Ala. describes’ Microsoft’s principal business as being “within the State of Texas” and asserts its right to represent customers injured by past purchases of Windows 2000 (which hasn’t gone on sale yet) and customers of “‘MacIntosh Computer Company’ (it meant Apple Computer Inc.)”
Waite, Schneider, Bayless & Chesley, the Cincinnati firm of famed master-of-disaster Stanley Chesley, charged that Microsoft’s actions “prevent[ed] development of a Windows 95 version of Netscape Navigator”, but one was introduced years ago; a lawyer with the firm explains that by “prevent” he meant “delay”. “It seems like all of these cases were written under the influence of an active pharmaceutical ingredient,” Microsoft spokesman Mark Murray told the Post. “The only people who are going to benefit from these cases are lawyers.” (David Segal, “In race to sue Microsoft, some trip”, Washington Post, Dec. 21 — full story)
December 23-26 — Jovanovic conviction overturned. A New York appeals court has overturned the kidnapping and sex abuse conviction of Columbia University graduate student Oliver Jovanovic. (“New York appeals court throws out conviction of ‘Cybersex’ defendant”, AP/CNN, Dec. 22). This site briefly commented at the end of July on the unfairness of Jovanovic’s trial, at which the judge, applying New York’s “rape shield” statute, forbade the defendant’s lawyers to introduce as evidence emails from the accuser which cast doubt on her story; for more details, see coverage in the New York Post, by Post columnist Steve Dunleavy, and by Brian and Elisabeth Carnell for the Women’s Freedom Network. Jovanovic has served 20 months of a 15-year sentence. Update: all remaining charges dropped against Jovanovic on Nov. 1, 2001 (see Jan. 9-10, 2002)
December 23-26 — New subpage on Overlawyered.com: legal ethics in crisis. Okay, we admit that if we pulled together everything on this site raising questions of legal ethics we’d have a subpage too big to use. So we’ve just gathered here links and commentaries on a range of topics that includes witness-coaching, ethical billing practices, civility, conflicts of interest, champerty and the role of contingent fees, “pay for play”, discipline of errant lawyers by the bar, client protection, judicial ethics, and other matters likely to come up in a course on professional responsibility.
December 22 — A question of t-shirt velocity. On December 7 we summarized the “flying t-shirt” suit filed by Stewart Gregory of Cincinnati against NBC’s “Tonight Show” and host Jay Leno, alleging he was “battered” and “forcefully struck” when the warm-up comic who preceded Leno on the show blasted a freebie t-shirt into the audience with an air gun. The next day the AP ran a short item on the case, which added a new detail or two (earlier reports had Gregory alleging that he was hit in the face, the new one says eye) and quoted the 56-year-old plaintiff: “It’s not frivolous when you get hit with a hard object traveling 800 feet per second.” (“‘Tonight’ Audience Member Sues”, AP/Washington Post, Dec. 8). Reader Bob Kanyok from St. Louis writes: “800 feet per second is 545 miles per hour, the speed of a jetliner. A ‘hard object’ the size of a t-shirt at 800 feet per second would have done a lot more than injure his eye, it would have torn his head off. Odd how no one else has picked up on this. Are all the reporters out there innumerate?”
December 22 — Popular continuing-legal-education course: “How to Hammer Allstate”. Seminars with that title have been playing to overflow crowds of trial lawyers around the country. The big insurance company has angered plaintiff’s attorneys by taking a hard line in defending claims filed against its auto policyholders, especially where vehicle damage is minimal and the claim is of soft-tissue injury. “There’s a sense of righteous indignation,” says Robert I. Reardon Jr., who organized one such seminar for the Connecticut Trial Lawyers Association which drew 320 lawyers. Allstate lawyer William Vainisi agrees that the company has been mounting a tough defense effort but says it is directed against “inflated demands and built-up medicals”. (Mark Ballard, “Hot CLE Class: Hammering Allstate”, National Law Journal, Dec. 10). The company has also infuriated attorneys in recent years by contacting persons who have been involved in crashes with its policyholders and urging them to consider settling the claim without a lawyer, a step that its opponents charge violates rules against the unauthorized practice of law. (Danielle Rodier, “Allstate Sheds UPL Claim, Still Faces Consumer Protection Suit”, Legal Intelligencer, April 14; ArkTLA; W.V. bar (link now dead); Phila. Trial Lawyers Assn.; NYSTLA; Conn.; Insure.com). More: Apr. 18, 2000.
December 22 — Pay us for this service. Dr. Xavier J. Caro was stunned recently when lawyers for his wife Cora, from whom he is seeking a divorce, demanded $550,000 from him as a “community loan” as a prepayment of costs for her forthcoming criminal defense. Cora Caro is in the Ventura County, Calif. jail on charges that she murdered three of the couple’s four sons, ages 5, 8 and 11, on Nov. 22 before turning the gun on herself (she survived). The demand letter from Agoura Hills attorney Rand E. Pinsky “lists $600,000 to $800,000 as the equity value of the couple’s Presilla Road home as well as investments and properties they own”, according to the L.A. Times. “The normal procedure in a criminal matter is that defense costs are prepaid,” Pinsky said. Dr. Caro has countersued his wife. “Doctor Files Wrongful Death Suit Against Wife”, L.A. Times, Dec. 16).
December 22 — Tobacco fee fight looms in Mass. Massachusetts Attorney General Thomas F. Reilly is vowing to fight “with every resource we have” to prevent the Boston law firm of Brown Rudnick Freed & Gesmer from collecting roughly $500 million, which the firm says is its share of a $2 billion contingent fee owed by the state over 25 years to five firms that represented it in the tobacco-Medicaid litigation. Reilly says the Brown firm has already been awarded $178 million for the representation: “At some point, enough is enough.” (Frank Phillips, “Reilly to fight claim of lawyers”, Boston Globe, Dec. 20).
December 21 — Accessible websites no snap. It’s hard to think of a better way to slow the growth of the Net than to menace web providers with exposure to liability for mounting or running ordinary, garden-variety websites or online services. Yet under prevailing interpretations of the Americans with Disabilities Act, both large and small e-tailers, online publishers, and applications providers may be open to damage suits on the grounds that their offerings are not accessible (as the term goes) to disabled users. Last month the National Federation of the Blind filed a lawsuit against America Online, charging that it has not moved with sufficient vigor to make its services fully available to sightless users (“Lawsuit: AOL Ignores Blind”, Reuters/Wired.com, Nov. 5, link now dead). AOL is a big business, of course, but there’s no reason to think that accessibility obligations under the ADA do not extend all the way down to many “mom-and-pop” ISPs, applications providers, online magazines and journals, e-stores, and so forth.
What exactly, does it mean for a site or service to be accessible? Disability advocates have declared many commonly encountered features in web design to be unacceptable barriers to one or another group of users. Among them are displays that depend on color to convey information, common methods of employing tables and graphics to assist in page layout, navigational designs that respond to mouse but not keyboard commands, and streaming audio when not accompanied by text translation. (Adam Clayton Powell III, “Is Your Site Accessible?”, Reason, July 1999; W3C, Web Accessibility Initiative). Web operators who ignore the advice of experts in this field must be seen as setting themselves up at some point for potential costly lawsuits. Yet the alternative of giving top priority to ADA compliance is hardly attractive either, since it might involve tearing down existing nonconforming webpages pending future redesign, refusing to employ developers who haven’t gone through special courses aimed at helping unlearn common page-construction habits, and abandoning decentralized publishing models in which many different employees, group members or customers are permitted to erect free-form content on a site. Almost incidentally, another effect would be to involve publishers of all shapes and sizes — First Amendment or no — in ongoing, intimate negotiations with government agencies and private pressure groups over questions of what they will and will not be allowed to publish.
But not to worry, say many disabled advocates — “Bobby” will save the day! Available at the Center for Applied Special Technology site, “Bobby” is a free program with sponsorship from leading businesses that will review any website and automatically diagnose where it needs to be fixed to provide handicap accessibility. Sounds easy enough, right? To be sure, the wave of favorable publicity about Bobby this summer revealed the embarrassing fact that many of the federal government’s own major websites, including the White House site itself, were not Bobby-compliant — this even though the U.S. Justice Department was rattling its sword to call private companies’ attention to the issue of high-tech accessibility. (To see the ways in which this site falls short on Bobby, click here; to see how badly the White House still flunks, here).
Given that pretty much everyone’s website seems to be out of compliance, ADA or no ADA, it was with much interest that we noticed the splashy, full-page ads recently announcing the launch of a major new website, evidently with substantial financial backing behind it, that would be specifically geared to the needs of disabled users. The site, called WeMedia, is affiliated with We magazine and aims to create an online community of disabled users for purposes of both service and advocacy. Finally, a chance to see how the experts themselves deal with the accessibility problem! You can therefore imagine how crestfallen we were to find the following notice blazoned on the site’s front page: “Currently, We Media’s site is not 100% ‘Bobby’ compliant. However, we are working very hard over the next few weeks to make sure that it becomes so.” [Update: a check on 2/7/00 finds that WeMedia now displays a Bobby approval button.]
December 21 — “Lawyers stealing less, clients say.” Now there’s a jolly, upbeat headline for you! “For the first time in its 16-year history”, the fund that reimburses victimized clients when Empire State attorneys commit theft or fraud is experiencing a sharp drop in payouts, according to the New York Law Journal. Officials say they believe the drop in client-cheating is genuine and credit, in part, two major reforms: banks are now directed to notify the client-protection fund when lawyers bounce checks from their escrow account, and insurance companies that pay to settle personal-injury claims are now directed to notify the claimants themselves about the payments rather than rely on their lawyers to tell them. (John Caher, “Lawyers stealing less, clients say”, New York Law Journal, Nov. 19).
December 21 — Oops! Didn’t mean nothing by that, ma’am. At D. McRae Elementary School in Fort Worth, Tex., counselor Seth Shaw got in trouble, according to his account, after he said “Hello, good looking” to a female newcomer he encountered in the office. She turned out to be an outside consultant there to conduct a training workshop on sexual harassment. Officials asked Shaw, a nine-year veteran, to resign over the incident, but school trustees settled for a 20-day unpaid suspension. (Martha Deller, “Fort Worth school counselor assessed 20-day unpaid suspension”, Fort Worth Star-Telegram, Dec. 17).
December 20 — Pack your toothbrush, son. Five years ago young law clerk Richard Poff decided to blow the whistle on questionable practices he’d seen firsthand at his employer, the influential Birmingham, Ala. plaintiff’s firm of Roden, Hayes & Carter. The firm, he said, had been paying hospital and police employees for leads in injury cases, and charging gambling and golf junkets, Royal Caribbean cruises and liquor store bills against client accounts. What happened next? All three name partners drew bar suspensions and pled to misdemeanors after arguing, in part, that the expense-charging had not affected clients’ eventual take from their cases.
So was Poff given a hero’s thanks by a local legal profession grateful for his help in cleaning itself up? Not exactly: he became virtually unemployable, was hit with a still-pending $1 million default judgment for libeling his old boss, got thrown in Birmingham jail for three days, and was ordered sent for psychiatric examination. “It seemed as though every judge in town was warning him to pack a toothbrush.” For a while, a judge even ordered the state’s press not to report on the proceedings. The state’s Supreme Court has yet to rule in the affair, but the lesson’s been made crystal clear for anyone who might be tempted to emulate Poff: don’t try to fight the legal fraternity. (Michael Goldhaber, “Crazy in Alabama”, National Law Journal, Dec. 15).
December 20 — Cute names for laws: enough, already. One example of the triumph of sentiment over dispassion in contemporary law is the naming of new criminal statutes after the victims they’re meant to avenge. Thus we got the “Megan’s Law” sex offender registries, followed more recently in New York by “Buster’s Law”, a felony animal abuse statute named after a murdered cat. We’re not alone in our dislike for this practice: Albany lawyer Terence Kindlon says you shouldn’t “give cute names to law…Can you see the words ‘Buster’s Law’ coming out of the mouth of Oliver Wendell Holmes?” Currently defending a Rensselaer Polytechnic student who faces a possible two-year jail sentence for breaking his dog’s leg during what he says was an attempt at discipline, Kindlon believes the law’s headline-friendly nomenclature is presenting him with an uphill battle. “It is sort of a celebrity law, it is a law with a built-in press agent.” (Joel Stashenko, “Attorney questions practice of naming laws after victims”, AP/Schenectady Gazette, Dec. 19)
December 20 — Those Bronx juries. “In civil cases, they are extraordinarily generous. ‘Let’s face it: the Bronx civil jury is the greatest tool of wealth redistribution since the Red Army,’ said attorney Ron Kuby, who won a $43 million civil judgment against subway gunman Bernie Goetz from six Bronxites.” (“Bronx juries: all things to all people”, AP/Newsday, Dec. 18).
December 20 — Stroller-parking: then and now. Last Tuesday a Manhattan jury rejected a Danish woman’s claim “that New York City police officers had falsely arrested her outside an East Village restaurant after she left her baby daughter in a stroller on the sidewalk to go inside for a drink”. It did, however, award Anette Sorensen $6,400 in compensatory damages for the cops’ failure to inform her that she had the right to summon help from the Danish consulate, plus $60,000 in punitive damages — an outcome that, perhaps oddly, both sides in the case appear to view as vindication for the police. In today’s New York Times, Sven Larson writes a letter from Hvidovre, Denmark, to dispute Sorensen’s claim that she was only following the practice in her home country: “While many [in Denmark] leave carriages outside shops for a couple of minutes, no one parks a baby outside a restaurant after 6 p.m. for as much as an hour.” The difference, he says, is that in Copenhagen “the police would have asked her kindly to bring the carriage inside and nothing more would have happened”. (Benjamin Weiser, “Damages but No False Arrest in Stroller Case”, New York Times, Dec. 15; letter, Dec. 20). By coincidence, we happened to be visiting James Lileks’s Institute of Official Cheer, an online archive of vintage ad images, and found this 1950 A&P grocery store ad from Life treating it as a selling point for the market that so many mothers left their baby prams out front.
December 20 — News flash: Bill Clinton endorses loser-pays! He now thinks parties charged with wrongdoing should be able to collect for the burdensome cost of their legal defense, if they’ve prevailed in the end. Whoops, scratch that…turns out Bill wants his legal fees covered re the independent counsel investigation, but everyone else who gets dragged into court and eventually prevails can just go fish. (Charles Babington, “Clinton May Ask U.S. to Pay Legal Fees”, Washington Post, Dec. 18)
December 20 — Welcome Robot Wisdom readers. We got a mention yesterday on Jorn Barger’s weblog, one of the earliest, most eclectic and most widely followed examples of the genre.
December 17-19 — Splitsville, N.Y. Cover story in last week’s New York on the city’s big-league divorce biz arrives at a consensus view of the broad legal trends (“equitable distribution” keeps getting messier and more expensive, “lawyers have to play constant catch-up as new, intangible assets are added to the marital-property pot”, judges have vast discretion so it’s hard to predict what they’ll do), celebrity tactics (on the oft-used gambit of threatening to send dirt to the tabloids, the “bullet of embarrassment only has cash value when it’s in the chamber”), the cushy, cash-vacuuming role of minor players (asset evaluators and guardians of children’s interests, appointed by the court and paid out of the marital estate, can “make a fortune”, agrees the city’s top judge) and social strain (guest at East Side dinner party bursts into tears on finding she’s been seated beside lawyer who’d represented her husband, but it wasn’t easy to re-seat him: “At a table for ten,” he explains, “I’d done five divorces”).
Bitter clients? No trouble finding those: “Being the best divorce lawyer in New York is like being the best devil in Hell,” says publisher Judith Regan, whose own split has cost more than $1 million over seven years. “It means you’re avaricious, conniving, and vicious….Divorce law is not about justice or fairness or protecting anyone’s rights or what’s best for a child; it is big business.” “The first thing they get is a net-worth statement,” says another unhappy customer, plastic surgeon Ronald Linder. “Then they make sure they get your total net worth.” Lawyers counter that unreasonable clients often spurn settlement and insist on fighting every issue, though attorney William Beslow notes that “there’s a built-in incentive to keep litigation going by either purposely misadvising clients or telling them what they want to hear, which solidifies the relationship but ensures conflict”.
Attorney Raoul Felder, as is his wont, dispenses extreme quote. Of charges that threats of publicity constitute extortion: “Isn’t every lawsuit a form of legal extortion? The law is constructed that way. Pay me or go to court.” According to New York, a “low point” in Felder’s career came when he “[p]ublicly declared Robin Givens wanted nothing from Mike Tyson one day after privately demanding an $8 million settlement.” “On one level, it’s sleazy,” he says. “On another, I’m not robbing supermarkets.” (Michael Gross, “Trouble in Splitsville”, New York, Dec. 13).
December 17-19 — Truth in recruitment? An Essex County, N.J. jury yesterday awarded more than $10 million to former New York Giant football player Philip McConkey on the grounds that he had been lied to when he was recruited for a management job at an insurance brokerage which was in talks to sell itself to a larger company. McConkey said he would never have taken a job at Alexander & Alexander in May 1996 had he realized the firm would be bought in December of that year by insurance company Aon Corp. The job offered base pay and benefits of $352,000 a year, with a chance of commissions of $3 million to $5 million a year. The following March he was fired from the job, he said. Frank G. Zarb, chairman of A&A at the time, testified that when he interviewed McConkey he’d already engaged in preliminary talks with Aon, but considered A&A’s management as the side that would come out on top if the two companies were combined.
The company also pointed to McConkey’s employment contract, which it said demonstrated that he was an “at-will” employee who could be dismissed for any reason. In vain: the jury voted the former wide receiver and Navy helicopter pilot $3 million for lost income, $2 million for emotional distress, and $5 million in punitive damages. Zarb himself, however, “was dismissed as a defendant before the trial started”; he is now chairman of the National Association of Securities Dealers, which runs the NASDAQ stock market. The case may represent a breakthrough for employment plaintiff’s attorneys who have for years been pushing “recruitment fraud” theories of recovery. (Jeffrey Gold, “Jury Finds NASD Chairman Lied”, AP/Excite, Dec. 16)
December 17-19 — Transit shutdown. A jury has awarded $50 million to Shareif Hall, who lost a foot in an escalator accident on the Philadelphia subway system, and $1 million to his mother, Daneen. Robert T. Wooten, a board member of the Southeastern Pennsylvania Transportation Authority (SEPTA), called the jury verdict a “very, very serious financial blow” to the finances of the transit agency, and predicted service cuts and fare increases if the award or any substantial fraction of it is upheld on appeal.
According to the boy’s lawyer, Thomas Kline, the jury was angered when memos emerged from the transit agency that stated that the escalators were in poor and deteriorating condition. State law limits personal-injury awards against public entities, but Kline successfully recharacterized the claim as in part one of deprivation of the boy’s civil rights; $25 million of the jury’s award was to compensate the boy for that purpose, and therefore is not subject to the limit. (“Boy awarded $50 million in Pennsylvania escalator accident”, AP/CNN, Dec. 15, link now dead; Claudia N. Ginanni, “Documents Uncovered Mid-Trial Fuel $51 Million Injury Verdict v. SEPTA”, PaLawNet, Dec. 15 (subscription))
Update: After the verdict, Judge Frederica Massiah-Jackson expressed anger over SEPTA’s mishandling of physical evidence and failure to provide relevant documents requested by the plaintiffs. The agency settled the case for $7.4 million and pledged to improve both its escalators and its litigation behavior in the future. (Claudia Ginanni, “Judge Fines SEPTA $1 Million Authority; Held in Contempt for Withholding Evidence”, The Legal Intelligencer, Dec. 23; “SEPTA Settles Escalator Suit for $7.4 Million”, Jan. 6) (see Jan. 29-30 commentary).
December 17-19 — “New Mexico county is ordered to use non-English-speaking jurors”. A judge ruled this fall “that potential jurors in Dona Ana County cannot be eliminated simply because they do not speak English”. Now officials are wrestling with questions like: should each juror get his own translator? How will the presence of translators in the jury room influence deliberations? What if a juror facing a language barrier asks to be excused from sitting on a case? Court-paid translators can expect to get a workout, given that all the testimony, documents and exhibits, lawyers’ arguments and judges’ instructions in cases will commonly be in English. And Spanish is not the only language that must be accommodated; one prospective juror spoke a particular Indian dialect the translation of which would have required the services of a specialty translator at $180 an hour, had the juror not been excused for health reasons. (AP/FindLaw, Dec. 13)
December 17-19 — Most unsettling thing we’ve heard about Canada in a while. We knew political correctness held great sway in the public life of our northern neighbor, but didn’t realize the following: “Canada’s most powerful tool against politically incorrect speech is its hate speech code, which prohibits any statement that is ‘likely to expose a person or group of persons to hatred or contempt’ because of ‘race, color, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age.’ Prosecutors are not required to show proof of malicious intent or actual harm to win convictions in hate speech cases, and courts in some jurisdictions have ruled that it does not matter whether the statements are truthful.” (Steven Pearlstein, “In Canada, Free Speech Has Its Restrictions: Government Limits Discourse That Some May Find Offensive”, Washington Post, Dec. 12)
December 16 — Got milk? Get sued. Physicians Committee for Responsible Medicine, a veggie-oriented group of litigious bent that claims 5,000 physician supporters, last figured in these columns on Sept. 25 when it urged the federal government to file a tobacco-style lawsuit against “Big Meat”. Now comes word that PCRM expects Massachusetts state senator Dianne Wilkerson to join it in a lawsuit it has organized charging that the federal government is being racist by distributing milk to schoolchildren. The reasoning? Black children are more likely than white children to display lactose intolerance, a condition that prevents them from digesting one of the major nutrients in milk. Wilkerson was also concerned to learn that a large cereal manufacturer was sending free cereal to the Boston schools, thus encouraging more milk consumption. “I want us to become health-food conscious, lactose-free public schools,” Wilkerson told the Boston Globe. “There are other options, like calcium-fortified juice.” (“Got milk? Minority schoolchildren do, and maybe they shouldn’t”, AP/Boston Globe, Dec. 13, link now dead (via Lucianne.com))
December 16 — GM verdict roundup. Marion Blakey, who used to run the National Highway Traffic Safety Administration, finds it remarkable that verdicts like this summer’s Anderson v. General Motors (see our July 10, August 27 commentaries) allow lawyers to shift legal responsibility for accidents away from drunk drivers to automakers with their deeper pockets, at the eventual expense of car buyers. (“Drunken drivers make mockery of justice”, Detroit News, Dec. 9). The Los Angeles jury’s initial award of $4.9 billion, since reduced by the judge to a putatively more reasonable $1.2 billion, “surpasses the combined gross domestic product of Afghanistan and Albania”, writes op-ed contributor Jim Lafferty (“Two astronomical lawsuit awards may be start of dangerous trend”, San Diego Union-Tribune, Nov. 14). The Federalist Society has mounted a series of panel discussions around the country on the lessons of the Anderson case, and has posted transcripts of the proceedings on its website. And on Monday the Christian Science Monitor ran an op-ed point-counterpoint about the case between R. David Pittle, technical director of the remorselessly pro-litigation Consumers Union, and classic-car auctioneer Mitch Silver. (R. David Pittle, “Fix car design before lawsuit“, and Mitch Silver, “Create wise policy, not crash-proof cars“, Dec. 13). Update Aug. 3, 2003: case settled on undisclosed terms.
December 16 — Gotta regulate ’em all. Quebec Language Minister Louise Beaudoin has threatened legal action against the makers of Pokémon trading cards for allowing them to be sold in the province without French-language packaging or instruction. Ms. Beaudoin said a French version of the popular cards is sold in France itself, Belgium and Switzerland, but is not available in la belle province despite local laws mandating use of the language: “I don’t understand and I can’t accept it … we hope this ultimatum will result in our law being respected.” The cards’ manufacturer, Wizards of the Coast of Renton, Wash., says rights to sell the Japanese-origin cards are divvied up geographically, and that it has North America; it completed an English-language translation first, and now has finished work on a French version which it expects to have on sale in Quebec by February. (Sean Gordon, “Quebec minister demands French version of Pokemon”, National Post (reprinted from Montreal Gazette), Dec. 10) (earlier Pokémon coverage: Oct. 13, Oct. 1-3).