February 2001 archives, part 1


February 9-11 – Litigators vs. standardized tests, I: the right to conceal. “In a major victory for disability rights groups, the Educational Testing Service announced yesterday that on many of its standardized exams it would stop flagging the results of students with physical or learning disabilities who receive special accommodations, like extra time, for the tests.” Disability rights advocates had sued ETS arguing that it was violating antidiscrimination law by letting university admissions departments and other downstream users know that a test had been taken with extra time or other accommodations. “The real winners aren’t the physically handicapped,” observes Virginia Postrel (Feb. 8). “They’re academically disabled people who know how to work the legal system.” Upwards of ninety percent of accommodations are demanded by students asserting learning disability or attention deficit, and extra time is typically among the demands; figures from California and elsewhere indicate that affluent students are much more likely to assert such disabilities than are students from modest backgrounds. (Tamar Lewin, “Disabled Win Halt to Notations of Special Arrangements on Tests”, New York Times, Feb. 8)(reg) (more).

February 9-11 – Litigators vs. standardized tests, II: who needs sharp cops? “Last May, the Ninth Circuit Court of Appeals ordered the Justice Department to pay Torrance, Calif., $1.7 million in attorneys’ fees for a police bias suit the trial court had called ‘frivolous and unreasonable.’ The alleged police wrongdoing? They screened for reading and writing skills (albeit at a ninth-grade level) in hiring exams. Such tests, argued Justice, have a disparate impact on minorities and have no legitimate job purpose. … But as the court recognized, analytic skills are essential to policing. Officers must digest written material, understand complex procedural laws, and produce clear reports for use in court.

“Despite its defeat in Torrance, Justice continued to threaten police departments with litigation unless they replaced traditional hiring exams with federally approved tests. These all but excise cognitive questions in favor of true/false ‘personality’ measures such as: ‘I would like to be a race car driver,’ or ‘I would like to go to a party every night if I could.’ Such states as New York, New Jersey and Missouri caved in. Many jurisdictions have ceased cognitive testing pre-emptively.” (Heather Mac Donald (Manhattan Institute), “Stop Persecuting the Police”, Wall Street Journal, Feb. 5 (online subscribers only)).

February 9-11 – “Victim is sued for support”. “A woman convicted of shooting her estranged husband in the head, and who served almost two years in jail for her crime, is going to court to get spousal support from the man she nearly killed. And there is a very good chance she’ll get it, according to several family law practitioners.” That Christine Alexander attempted to murder her husband David “may be a moot point when determining support, since Canada’s Divorce Act is ‘no fault’ and does not take prior conduct into consideration. Nor is there any statute of limitations for filing a claim. ‘Her conduct isn’t admissible under the Divorce Act,’ Toronto family lawyer Philip Epstein said. ‘Technically speaking, the fact that she shot him in the face doesn’t bar her from a support case.”” (Martin Patriquin, Toronto Star, Jan. 23).

February 7-8 – “Woman who drove drunk gets $300,000″. “An Ontario woman who got drunk at an office party and crashed her car has successfully sued her employer for allowing her to drive — even though her company offered a cab ride or accommodation if she gave up her keys. Linda Hunt, 52, won more than $300,000 in damages and interest from Sutton Group Realty Ltd., of Barrie, Ont., after arguing her boss should have stopped her from driving home in a snowstorm following a 1994 Christmas party.” The judge assessed Hunt’s damages from the resulting accident at C$1.2 million, but reduced that by three quarters to reflect her own fault in the matter. He “went on to declare it the duty of employers to monitor the alcohol consumption of employees at company functions. The decision is expected to send a chill through offices across the country”. (Charlie Gillis, National Post (Canada), Feb. 6) (& update Aug. 16, 2003: appeals court orders new trial).

February 7-8 – “Survivor” contestant sues. Stacey Stillman — the one contestant on the hit TV show “Survivor” who was an attorney in real life — “is suing its producer, alleging he rigged the outcome by arranging to have her voted off the show, according to a published report Tuesday.” The report, in USA Today, said Stillman had sought a $5 million settlement from CBS and other defendants. (“TV’s ‘Survivor’ sued”, CNNfn, Feb. 6).

February 7-8 – Safer smokes vs. the settlement cartel. One fledgling business would like to experiment with selling a cigarette designed to inflict less harm on the user’s lungs than the regular kind. But the trial-lawyer-brokered multistate settlement between cigarette companies and state attorneys general imposes a special prohibitive charge on new-entrant companies that might seek to compete with incumbent tobacco companies, the better to protect the states’ revenue stream. Too bad for smokers, but who cares about them anyway?, seems to be the general view. (Jonathan Rauch, “How To Build a Better Cigarette — And How To Snuff It Out”, The Atlantic/National Journal, Jan. 19).

February 7-8 – Employees not tenured in California. Of the fifty state supreme courts, California’s and Michigan’s had led the way in creating new rights for employees to sue over “wrongful termination”, edging toward a sort of property right on the part of workers not to be fired, at least if they had been on the job for a while with no complaint from their employers. But Michigan’s court has pulled back from its liberal interpretations in recent years, and now it appears that California’s is doing the same. The state’s Supreme Court ruled last term that an employee could not assert an “implied” promise to be retained in continued employment when his employer had explicitly spelled out in print that it had the right to discharge him at will. Commonsensical as the ruling may seem, it confirms that “implied” tenure rights are not going to swallow the general background rule of at-will employment in California, as they seemed likely to do not so long ago. (Kevin Livingston, “Employers Win Big in At-Will Case”, The Recorder/CalLaw, Oct. 6) (Guz v. BechtelPDF/document, courtesy Findlaw).

February 6 – “Persistent suitor”. For more than ten years now, a commercial publisher of scientific journals by the name of Gordon & Breach has been suing two scientific societies, the American Physical Society (APS) and the American Institute of Physics (AIP), which it says have conspired to disparage the physics journals it publishes. The two societies say they’re being sued for having had the temerity to spread the word about a price comparison of journals in which G&B’s entries fared badly, and they say the publisher is using litigation to punish them for exercising their rights of free speech, not to mention academic freedom. (Andrew R. Albanese, “Inside Publishing”, Lingua Franca, Dec./Jan.; barschall.stanford.edu; more)

February 6 – “Lawsuits could tame ski slopes”. Lawyers pursuing a wrongful-death case against the Vail ski resort will try to dodge Colorado’s strict limits on ski-operator liability. “I don’t envy the jury. It will understandably sympathize with the mother’s loss. But before it litigates our winter sports out from underneath us, I hope it will consider that many Americans see winter’s snows as a liberating force, as a frontier-like challenge against which we define ourselves. The most interesting and challenging winterscapes count if and only if we can freely throw ourselves into them and confront chaos, if we can ski the chutes and risk the avalanches.” (Tom Wolf, Denver Post, Nov. 26).

February 6 – Amazon “Honor System”: a new way to support this (and other) websites. How do people keep nonprofit, literary, hobby or “cause” websites going? The answer isn’t obvious, given that banner ads are obtrusive and don’t after all bring in that much revenue (we’ve avoided them from the start). Pretty much every small web publisher is hoping that some system of micropayments or -donations comes along soon and now Amazon.com is leading the way by launching, today, something it calls the “Honor System”: it allows readers of a site to make small online contributions toward its upkeep (see this site’s front page).

As you can imagine, we’d like to be able to purchase better page construction and FTP software, keep expanding our ListBot-hosted mailing list without having to put ads in it, buy somewhat more deluxe hosting services, subscribe to more journals that serve as sources for our kinds of stories, get out to more conferences other than the ones that pay us to come speak, and — who knows? — maybe even develop a few banner ads of our own to let more new readers know about Overlawyered.com. And now you can help out toward the site’s continuation and expansion by clicking Amazon’s “Honor System” box where you will learn how to make a small donation, much as if you were buying or subscribing to a print newsletter or magazine. You can use your credit card, the donations can be quite micro in nature — a dollar or two, for example — and no information about you will be shared with us, which means you will have to accept our gratitude in a very general way (again, see this site’s front page). We also urge you to check out the roster of other participating sites that Amazon is publicizing as part of the system’s launch — it includes some gems.

February 5 – Caesarean rate headed back up. “The number of US women giving birth by caesarean section is rising rapidly, signaling an apparent end to an ambitious public health effort over the past decade to reduce the nation’s C-section rate. With about one in four babies born by C-section in the late 1980s, rates began to fall after health authorities warned that the numbers were unnecessarily high and that too many surgeries were motivated by doctors’ fear of lawsuits over vaginal deliveries.” (Shari Roan, “C-section rates rise after 1-year decline”, L.A. Times/Boston Globe, Jan. 30).

Although a large volume of malpractice litigation blames cerebral palsy (CP) in newborns on asphyxia of the infant during labor (which is often, in turn, attributed to doctors’ failure to perform a timely C-section), much of the research would “indicate that there is poor, if any, correlation” between most markers for asphyxia and the development of CP in infants, writes the chairman of the ob/gyn department at University of Texas, Houston, Medical School (Larry C. Gilstrap III, MD, “Obstetric antecedents of cerebral palsy: What we know and don’t know”, January 18 – 21, 2000). And five years ago a literature review for the state of Minnesota found that electronic fetal monitoring (EFM) had proved of uncertain benefit at best in improving neonatal outcomes but was in nearly universal use due to liability concerns, and in turn led to a higher rate of Caesareans and other surgical interventions: “The widespread use of EFM during labor appears to be driven, in part, by medicolegal concerns by physicians.” (“Fetal Heart Rate Assessment During Labor”, State of Minnesota Health Advisory Technology Committee, 1996). (DURABLE LINK)

February 5 – Welcome Wall Street Journal readers. Friday’s “Taste” section credited us for the story (Jan. 31) of the Ohio man who won an all-you-can-drink contest and then sued the bar after drinking so much he fell down. (“Tony and Tacky: The Punch Bowl”, Feb. 2 (online subscribers only)). We’ve also racked up links/mentions from, among many others, the Canadian site LegalHumour.com; New Hope, Pa. “Interesting Links“; NotPC.com; Cajun’s Morning Fix; the Utah state library system (July — they call us “opinionated but interesting”); Laurie Ralston, Pepperdine University, “Types of [Sexual] Harassment”, last modified Oct. 26 (see “The ‘Other Side’ of Sexual Harassment”); Bob Gaines, Univ. of North Carolina, Greensboro, “Sexual Harassment Resources”, last updated Feb. 2 (deeming us a “somewhat conservative point of view”); the Kansas Chamber of Commerce; and IRCpolitics.org.

February 5 – Mysterious portents. Tomorrow we expect to unveil a new feature on Overlawyered.com, but we’re not supposed to tell you what it is yet. Now, is that mysterious enough to make you come back, or what?

February 2-4 – Annals of zero tolerance: pointing chicken finger. “An 8-year-old boy was suspended from school for three days after pointing a breaded chicken finger at a teacher and saying, ‘Pow, pow, pow.'” The Jonesboro, Ark., school district, scene of a multiple shooting by a student three years ago, maintains a zero-tolerance policy on weapons, extending in this case to edible objects used as pretend-weapons. “Kelli Kissinger, mother of first-grader Christopher, said she believed the punishment was too severe. ‘I think a chicken strip is something insignificant,’ she said. ‘It’s just a piece of chicken.'” The school’s principal “said the school has zero-tolerance rules because the public wants them.” (“Boy suspended for pointing chicken finger like gun”, AP/CNN, Jan. 31).

February 2-4 – “Juries handing out bigger product liability awards”. Figures for cases collected by LRP Publications show a median award of $500,300 in 1993 rising to $1.8 million in 1999, while plaintiff win rates rose from 39 percent to 46 percent over the same period. Such numbers must be weighed with extreme caution, since they represent only a sampling of all cases (in fact, this group’s numbers on jury awards rely on self-reporting by winning lawyers, an obviously unscientific method vulnerable to manipulation), since they jump around a lot from year to year, and since median figures (half-higher, half-lower) are not nearly so useful as averages in trying to gauge the overall impacts on society of such litigation. (The median earthquake in India this year may have been quite moderate.)

Trial lawyers have their spin all ready: they’ve just gotten really selective in taking cases, you see, so those they do file are the ones that deserve much more money. They also call attention to the ongoing decline in the number of product liability cases filed in federal court, which has dropped steeply, from 32,856 in 1997 to 14,428 in 2000. Of course the main reason for this is that they’ve been filing cases instead in state courts, perceived as more plaintiff-friendly in recent years. (AP/CNN, Jan. 31; Geraldine Sealy, ABC News/Yahoo, Jan. 30)

February 2-4 – Crime does pay. Settling a lawsuit, the city of Denver has agreed to pay $1.2 million to teenager DeShawn Hollis, “who was shot by the police three years ago, moments after he had burglarized a house.” (Michael Janofsky, “Denver to Pay $1.2 Million to Young Burglar Shot by the Police”, New York Times, Jan. 31)

February 2-4 – AGs’ inflammable policy. Royalty disputes between state governments and oil and gas companies are not new, but state attorneys general have lately taken to hiring private tort lawyers to press their state’s claims in exchange for a share in the booty, and the lawyers are using their well-honed skills to whip juries into awarding sums far in excess of the original dispute. Quotes our editor (James Glassman, “Publicity-seeking politicians and contingency-fee lawyers corrupt the law”, TechCentralStation/ Reason Online, Jan. 29).

February 2-4 – One million pages served on Overlawyered.com. Last month set a new traffic record, as did last week … thanks for your support!