July 10-11 — Convicted, but still on their teaching jobs. How hard is it to fire a bad teacher in New York City? “Daniel LaBianca, chief of outside funding for School District 14 in Brooklyn, pleaded guilty in 1999 to helping private school officials embezzle millions in federal aid for poor children. Three years later, he still holds his New York public school job — and has a $10,000 raise to boot. A Daily News review of the seven cases since 1999 in which the Board of Education filed to terminate tenured school teachers or administrators with criminal convictions found that in every case, the crooks stayed in the school system.” The state education probe requires that attempts to oust educators be sent to arbitration, where the teacher’s union has an impressive record of defending its members against ouster. (Alison Gendar and Bob Port, “Cons in Classroom: Crooked teachers, officials cling to jobs”, New York Daily News, Jun. 26) (& welcome Joanne Jacobs readers; she describes three appalling teacher-ouster cases that she covered years ago). (DURABLE LINK)
July 10-11 — Memo to bar associations: save your P.R. bucks. The new president of the Florida Bar “is asking Florida lawyers to chip in as part of a $750,000 campaign to improve the image of lawyers. He’s even hired a public-relations firm.” Back in 1993 “the American Bar Association tried this same sort of thing …. The ABA paid a consultant $170,000 to improve the image of lawyers. It didn’t do any good then, either.” The way to salvage the profession’s reputation is precisely what the bar associations are not about to do, namely to police the profession’s excesses, writes columnist Howard Troxler. (“Mere PR campaign won’t change public’s low view of lawyers”, St. Petersburg Times, Jul. 8). Read the whole thing, which is full of observations like: “People tell lawyer jokes as a defense mechanism, because a certain percentage of lawyers exist for the sole purpose of finding a new victim from whom to extract money. Every small business owner dreads the lawsuit that will destroy all their efforts.” And see fuller report, Oct. 3. (DURABLE LINK)
July 10-11 — The legal price for roommate discrimination. “Do you have the right to say whom you want for a roommate? In California, you apparently don’t”, notes Eugene Volokh. “On May 7, the California Fair Employment & Housing Commission penalized Melissa DeSantis $500 for inflicting ’emotional distress’ on a would-be roommate by allegedly telling him that ‘I don’t really like black guys. I try to be fair and all, but they scare me.’ It also required her to pay him $240 in expenses — and take ‘four hours of training on housing discrimination.'” The case is Department of Fair Employment & Housing v. DeSantis (Cal. FEHC May 7, 2002).) Volokh thinks that if the issue were litigated far enough the courts would probably wind up finding there to be a constitutional right to “intimate association” that would protect people like DeSantis from being forced to room with people they didn’t want to room with, but writes, “To my knowledge there’s no caselaw on the matter.” (Volokh brothers blog, Jul. 8). In the reasonably well-publicized “lesbian roommate” case of 1996, however, Ann Hacklander-Ready and another respondent were made to pay several hundred dollars plus thousands of dollars in plaintiff’s attorney fees after deciding that they didn’t want to be co-tenants with a lesbian applicant, in violation of the fair housing laws of Madison, Wisconsin. The case reached the state’s appellate courts (Court of Appeals, Sept. 26, 1996) and the U.S. Supreme Court eventually denied certiorari (Hacklander-Ready v. Wisconsin, 117 S.Ct. 1696 (May 12, 1997)). So it would be natural for the California authorities to assume that, no, there is no remaining individual liberty left in this country to decide with whom one wants to live in a shared tenancy (& see Volokh updates, Jul. 12 -1-, -2-). More: Aug. 10, 2005 and Feb. 9, 2006 (Craigslist) (DURABLE LINK)
July 10-11 — They thought we’d just sue. “The fifth element that made Bin Ladenism possible was the West’s, especially America’s, perceived weakness if not actual cowardice. A joke going round the militant Islamist circles until last year was that the only thing the Americans would do if attacked was to sue the attackers in court. That element no longer exists. The Americans, supported by the largest coalition in history, have shown that they are prepared to use force against their enemies even if that means a long war with no easy victory in sight.” (Amir Taheri, “Bin Laden no longer exists: Here is why”, Arab News, Jul. 9) (via Instapundit, Jul. 7). (DURABLE LINK)
July 3-9 — Now we are three. We launched Overlawyered.com on July 1, 1999, which means we’re now beginning the site’s fourth year of commentary. Tell your friends! (DURABLE LINK)
July 3-9 — Law blogs. While we’re on a week-long hiatus, check out some of these weblogs on law and law-related topics, a category that barely existed a year ago. Aside from InstaPundit and the Volokhii, which if you’re like us you already visit daily or more often, there are the pseudonymous “Max Power” and pioneering Breaching the Web; Rick Klau; Bag and Baggage; Ernie the Attorney; zem; and Held in Contempt. (All the above-mentioned also display an excellent sense of taste by linking to this site). Most have link lists that will lead you to other law blogs and sites. Two others that are deservedly popular: Howard Bashman’s How Appealing and the pseudonymous “Robert Musil“. Not surprisingly, blogs are especially well established in the world of IP law and copyright, with such entries as Yale Law’s LawMeme; Donna Wentworth‘s blog at Corante, and EFF’s wonderfully named Consensus at LawyerPoint. (DURABLE LINK)
July 3-9 — “Tampa Judge Tosses Out Class-Action Suit Against Hog Company”. “A judge dismissed a federal class-action lawsuit against the nation’s largest hog producer, ordering the plaintiffs’ attorneys, including Robert Kennedy Jr., to pay the company’s legal expenses.” (We’ve been covering this case since it was farrowed in late 2000, not excluding Kennedy’s embarrassing public forays into the controversy). Chief U.S. District Judge Elizabeth A. Kovachevich granted Smithfield Foods’ motions to dismiss the case, “saying the plaintiffs did not succeed in establishing how the company’s actions damaged their property. The judge also said the plaintiffs’ attorneys filed ‘frivolous motions,’ and ordered the dozen or so law firms representing the plaintiffs, including Kennedy’s, to pay Smithfield’s legal costs.” Sometimes the system does work as it ought to — happy Fourth of July! (AP/Tampa Bay Online, Jul. 2). (DURABLE LINK)
July 3-9 — Drunk pilots. It’s apparently happened again, this time with an America West flight stopped before taking off at Miami. We covered the legal aftermath the last time around. (DURABLE LINK)
July 1-2 — Going to blazes. Raging wildfires are what you get if you suppress smaller burns and forbid deliberate thinning of forests through logging, but both logging and “controlled burns” out West have run into community opposition and litigation. “The uncertainty caused by [anti-logging] lawsuits has decimated the logging industry in Arizona, and that has contributed heavily to the situation we find ourselves in today,” writes Republican Rep. Jeff Flake of Arizona. “… If we want to save what remains of our forests in Arizona, we’ve got to get a handle on the frivolous lawsuits that prevent us from doing so.” (Rep. Jeff Flake, “Costly lawsuits provide kindling for forest blazes”, Arizona Republic, Jun. 25). In an article promoting the use of controlled burns, the New York Times cites prominent Westerners who seem to feel much as Flake does (“Gov. Jane Dee Hull of Arizona said it was ‘policies from the East Coast’ that kept the Forest Service from pruning overgrown forests. Gov. Judy Martz of Montana said environmental groups ‘played a great role in the fires,’ by blocking some efforts to log trees.”) while also quoting environmentalists who point to a General Accounting Office study which they say proves that they have seldom challenged fuel-reduction projects (Timothy Egan, “Idea of Fighting Fire With Fire Wins Converts”, New York Times, Jun. 30). Update: “Plans to cut fire danger by thinning trees in an Arizona forest now being destroyed by the nation’s largest active wildfire were blocked for three years by a Tucson environmental group, a Tribune investigation has found. The U.S. Forest Service approved a plan to thin trees and remove volatile debris in parts of the Apache-Sitgreaves National Forest on the Mogollon Rim in September 1999, according to court records. The plan was halted after the Center for Biological Diversity appealed the decision, then sued in May 2000, claiming the Forest Service had not followed regulations. The matter is still pending in federal court.” Mark Flatten and Dan Nowicki, “Green group lawsuit blocked forest thinning”, East Valley Tribune, Jul. 1). Further update Jul. 12-14: new Forest Service report indicates that fire-prevention projects have been frequently litigated, throwing doubt on the environmentalists’ case. (DURABLE LINK)
July 1-2 — Updates. The other shoe drops on various stories:
* Well, that didn’t last long: “Home Depot Changes Mind, Will Sell to Uncle Sam” reads the headline (AP/Tampa Bay Online, Jun. 28)(see Jun. 17-18).
* Former Minnesota court of appeals judge Roland Amundson has been sentenced to 69 months in prison for stealing more than $300,000 from the trust fund of a mentally retarded client (see Mar. 19) (Minneapolis Star-Tribune, Jun. 8) (via Burt Hanson’s Law and Everything Else, Jun. 8; Hanson argues that the sentence is too stiff).
* Another wrongful birth case for your list: “The family of a child born with a disabling chromosomal defect that went undetected during pregnancy has settled a wrongful-birth lawsuit against the mother’s obstetrician for $1.65 million, according to court papers and attorneys.” Cynthia Fields argued that she would have had an abortion “in the blink of an eye” had she been given an amniocentesis that revealed that her daughter Jade, now 7, would be born severely disabled, requiring round the clock care (Lindy Washburn, “Family of disabled child settles for $1.65M”, NorthJersey.com, May 23). On the crisis in obstetrics law generally, see Rita Rubin, “Fed-up obstetricians look for a way out”, USA Today, Jun. 30. (DURABLE LINK)
July 1-2 — Mississippi’s other disaster. As if the collapse of locally based WorldCom weren’t bad enough, state lawmakers still haven’t done anything about the litigation climate (Tim Lemke, “Best place to sue?”, Washington Times, Jun. 30). But at least Judge Lamar Pickard says his court in Jefferson County has enough out-of-town litigants for now and has told plaintiffs with no local connection to start taking their business elsewhere. (DURABLE LINK)
July 1-2 — Moving to new host. We’re in the process of moving this site to a new host (Verio); we moved our editor’s home site there a couple of weeks ago, as a trial run. It’ll be a little more expensive, but we can afford it thanks to our generous readers whose Amazon Honor System donations (more than $1,000 in all) put the site in the black last year. We expect the new service to be more reliable, especially on email, which had been a chronic problem with our previous service (we had a miserable time trying to get email to AOL users, for example). Thanks for your support! (DURABLE LINK)
July 19-21 — Disabled lap dancing just the start. Our recent item (Jul. 16-17) on demands for accessibility in lap-dancing facilities reminded an alert Australian reader of a recent case from his country in which a disabled complainant filed charges against the proprietors of a “swinging house party”, which was found in unrelated proceedings to be operating as an unlicensed brothel, for excluding her because of her status as a wheelchair user. (Ball v Morgan & Anor [2001] FMCA 127)(adult content warning, though it’s a court opinion). (DURABLE LINK)
July 19-21 — Stolen silence? Via WSJ OpinionJournal Best of the Web Today: “The London Sun reports that Nicholas Riddle, who heads a firm that owns the copyright to the late John Cage’s composition ‘4’ 33″ ‘–which consists of four minutes, 33 seconds of silence–is suing ‘pop guru’ Mike Batt, whose new band, the Plantes, has just released an album with a track called ‘A One Minute Silence.’ Riddle alleges that Batt violated Cage’s copyright. ‘John always said the duration of his piece may be changed, so the Planets’ piece doesn’t escape by virtue of its shorter length,’ Riddle tells the paper. ‘We want our royalties.'” Oh please, let this be a Monty Python skit and not an actual lawsuit (Thomas Whitaker, “Silence is old ‘un”, The Sun (London), Jul. 18). (DURABLE LINK)
July 19-21 — Enron’s other helpers. If Arthur Andersen & Co. is going to get run out of business for approving Enron’s dubious financial deals, why is its outside law firm, Vinson & Elkins, unlikely to face similarly devastating consequences for approving and helping structure the same deals? Well, one reason is that accountants are conceived of as having broad obligations to the general public, while lawyers mostly aren’t. Rather convenient for the lawyers, don’t you think? Julie Hilden makes a valiant effort to defend the double standard as a principled one (“Scummery Judgment”, Slate, Jun. 21). (& see letter to the editor, Oct. 23) (DURABLE LINK)
July 18 — “Family of boy injured by leopard may sue”. “In April, Eric River, 11, sneaked into the Rosamond Gifford Zoo at Burnet Park with friends, tried to feed and pet a snow leopard, got 10 deep lashes to his face, arm and back, and received 500 stitches. Now, three months later, his mother, Terry Wells, is threatening to sue the zoo’s owner, Onondaga County, for failing to properly secure and police the zoo after hours.” River and three friends managed to get into the zoo by scaling one 8-foot fence, squeezing through a gap in another, and scaling a 4-foot fence before finally approaching the leopard in its cage. (Teri Weaver, Syracuse Post-Standard, Jul. 17) (see Sept. 21, 1999). (DURABLE LINK)
July 18 — “Trauma center reopens doors”. The only trauma center in southern Nevada has reopened, “ten days after a state malpractice insurance crisis forced its closure”. (Las Vegas Review-Journal, Jul. 14; Joelle Babula, “University Medical Center: Trauma center closing”, Las Vegas Review-Journal, Jul. 2; Steve Kanigher, “Trauma cases to shift to nearest hospital”, Las Vegas Sun, Jul. 2; William Booth, “Las Vegas Trauma Center Closes as Doctors Quit”, Washington Post, Jul. 4; Las Vegas Review-Journal, coverage at a glance). Crisis continues in Mississippi: Reed Branson, “Doctors shutting practices amid epidemic of lawsuits”, GoMemphis.com, Jul. 11; John Porretto, “Exodus of doctors causing crisis for moms-to-be in Mississippi”, AP, Jul. 11. Texas: Mary Ann Roser, “Doctors at a crossroads”, Austin American-Statesman, Jun. 17. (DURABLE LINK)
July 18 — “Edwards’ fund raising a strong suit”. Why are we not surprised that he’s vaulted ahead of some better-known Democrats on the money-raising front? “Reports released Monday show that two fund-raising committees controlled by Edwards raised a combined $2.6 million in the second quarter of this year and that the North Carolina Democrat now has more than $4.4 million in the bank. … A News & Observer analysis of Edwards’ PAC money showed that more than 77 percent of it came from lawyers or law firms.” (John Wagner, Raleigh News & Observer, Jul. 16). All five of the top contributors to the Edwards campaign are plaintiff’s law firms, the list topped by Girardi & Keese of Los Angeles and Baron & Budd of Dallas, both familiar to longtime readers of this site. (David Brown, “The Candidate”, The Recorder, Jun. 14). (DURABLE LINK)
July 16-17 — By reader acclaim: quadriplegic sues strip club over wheelchair access. Edward Law of Orlando, Fla., who is quadriplegic, “has sued a strip club, charging that it violates the Americans with Disabilities Act because the lap dance room does not have wheelchair access.” In addition to suing the Wildside Adult Sports Cabaret of West Palm Beach, Law has also recently sued a second strip clup, “an Orlando restaurant and a Daytona Beach Harley-Davidson motorcycle shop”; we don’t know yet whether to assign his filing activities to this category. (“Orlando quadriplegic sues strip club over wheelchair access”, AP/Palm Beach Post, Jul. 15)(for more on lap-dance handicap accommodation, see Sept. 27-28, 2000). (DURABLE LINK)
July 16-17 — Mercury in dental fillings. For well over a century dentists have used a mixture of metals including mercury in standard tooth fillings, and both the U.S. Public Health Service and Consumers Union have declared that patients have no grounds for alarm that the fillings pose a risk to health. That hasn’t convinced a small if longstanding body of dissenters who hold that exposure to even trace amounts of the heavy metal must be having toxic effects on users’ bodies. The dispute has lately turned litigious, with Van Nuys, Calif. personal injury and environmental attorney Shawn Khorrami spearheading several suits which accuse the American Dental Association and dentists of wrongly promoting the material, and the ADA striking back with a defamation suit. (Doug Bandow, “Killer teeth?”, Cato Institute Dailies, Jun. 28; Raymond J. Keating, “Lawsuits and Legislation Causing Pain for Dentists”, Small Business Survival Committee, Jun. 7; AltCorp (anti-mercury testing firm); Stephen Barrett, “The Mercury Amalgam Scam”, QuackWatch.com, last revised Apr. 23; search QuackWatch on “amalgam”; American Dental Association on ADA v. Khorrami). (DURABLE LINK)
July 16-17 — Hizzoner’s divorce, settled at last. “Anyone who’s been appalled at the depths to which the parties stooped in this Hanover/Giuliani split just hasn’t been divorced from a millionaire often enough. As big splashy divorces go, this was no uglier than most.” (Dahlia Lithwick, “Hats Off to Rudy”, Slate, Jul. 12). (DURABLE LINK)
July 16-17 — “Spanking Client Not Legitimate Trial Prep Tactic”. Just plain bizarre: U.S. District Judge Robert N. Chatigny has ruled that an attorney’s malpractice insurer is not obliged to pay out in a case in which Derby, Ct. attorney Milo J. Altschuler allegedly took a client across his lap and spanked her before a court appearance. “The woman claimed Altschuler, before removing her panties and stockings, told her he needed to spank her so the judge didn’t think she was lying.” Judge Chatigny ruled that the spanking did not constitute the rendering of professional services, although Altschuler “acknowledged that he used [threats of spanking] in representing more than a dozen other clients to make them ‘more afraid of him than they would be of the prosecutor.'” (Scott Brede, Connecticut Law Tribune, Jul. 15). (DURABLE LINK)
July 15 — “Morales’ $1 Million Tobacco Fee Under Fire”. “Former Attorney General Dan Morales told lawyers that a $1 million contribution to his political campaign fund was a condition for joining his anti-tobacco legal team, a Houston lawyer testified in a newly released document.” In a 1999 interview that has only now been made public in court proceedings, an assistant to Texas Attorney General John Cornyn questioned Houston attorney Wayne Fisher, a former president of the State Bar and a former president of the Texas Trial Lawyers Association, under oath. Fisher “said Morales outlined two separate requirements during a meeting he had with the then-attorney general in 1995. Fisher said one condition of employment was to ‘front’ the legal expenses and a second was to ‘commit to contribute $1 million to (Morales’) political campaign — to (Morales’) political campaign fund, as I recall it.'” Fisher “chose not to join Morales’ legal team”; he also “recalled wondering later if the meeting was a ‘sting operation.'” Fisher’s account seems to buttress earlier recollections by noted plaintiff’s attorney Joe Jamail, who also did not join the state’s team (see Sept. 1-3, 2000, May 22, 2000, June 21, 2001, Aug. 29-30, 2001, Nov. 12, 2001).
The five law firms eventually hired by Morales are all “major contributors to Democratic candidates and causes”. Michael Tigar, attorney for the five, denies that any of their tobacco fees or expenses went to Morales but concedes that “some was paid to Austin political consultant George Shipley. Tigar said all the payments to Shipley were first reviewed by University of Texas law professor Charles Silver, who was retained by the lawyers as an ethics adviser.” (Clay Robison, Houston Chronicle, Jul. 12). (DURABLE LINK)
July 15 — Paper currency should accommodate blind, suit argues. “The American Council of the Blind, which seeks to improve conditions for the visually impaired, has sued the Treasury Department to force its way into the currency revamping process. …The group is not promoting a specific change that would help blind and sight-impaired Americans sift through their money, but hopes the government will study an array of options that would be helpful. A major step could be offering denominations in different colors or sizes with large-print features, like many other countries, [Ralph] Brunson said. Braille and textures also are possibilities, although the markings are prone to wearing off. ‘We did not specify a particular option because, primarily, at this point we’re trying to get the dialogue going,’ Brunson said.” (Mark Babineck, “Blind Group Sues U.S. over Currency”, AP/FindLaw, Jul. 1). (DURABLE LINK)
July 15 — New civil rights target: “linguistic profiling”. With assistance from a Ford Foundation grant, the National Fair Housing Alliance and Stanford education and linguistics professor Dr. John Baugh have launched a project “to study the impact of linguistic profiling on housing discrimination. This summer, Baugh will track the instances of bias that the housing markets show toward speakers of non-standard English over the telephone. Baugh says speakers who do not ‘sound white’ often are discriminated against over the telephone. ‘Even though the courts are reasonably well equipped to prosecute cases of face-to-face discrimination,’ says Dr. Baugh, ‘they have a hard time understanding and applying the law to linguistic profiling, and that’s where this research will help.'” “National Study on Linguistic Profiling in Housing Announced”, Jun. 26)(via Scott Norvell, FoxNews.com, Jul. 1). (DURABLE LINK)
July 12-14 — Welcome Salon.com readers, Bill O’Reilly listeners. We’re cited in Janelle Brown’s excellent article on parental lawsuits against teachers (“L is for Lawsuit”, Jul. 12) which mentions our subpage on overlawyered schools. And our editor is appearing today (Fri.) on Bill O’Reilly’s popular radio show to discuss the case of a New York City jury’s award to a woman who lay down on the subway tracks (see Jun. 26-27), along with other cases featured on our personal- responsibility subpage. Update: and welcome BBC-5 listeners, for whom our editor taped an interview arising from the Salon piece (DURABLE LINK)
July 12-14 — Credibility up in smoke? Environmentalist groups have strenuously denied that their use of litigation to stall road building, logging and the construction of firebreaks worsened this year’s raging wildfires out West (see Jul. 1-2). But it turns out that a recent General Accounting Office report, much cited by the enviro groups to show that they don’t sue often, actually may show nothing of the sort. “Environmental appeals delayed 48 percent of the [Forest Service]’s fire-suppression projects in fiscal 2001 and 2002, thereby stalling efforts to clear the brush and small trees that fuel the catastrophic wildfires plaguing the West, according to an internal Forest Service report obtained by The Washington Times. The report, slated for release [Thursday], found that 155 of the agency’s 326 plans to log overgrown, high-risk national forests were stymied by appeals. In Arizona and New Mexico, sites of some of this summer’s worst wildfires, that figure rose to 73 percent, and climbed to 100 percent in the Pacific Northwest”. (Valeria Richardson, “Forest Service Says Activists Played Role in Fires,” Washington Times, Jul. 11; Kimberley A. Strassel, “Truth Under Fire “, Wall Street Journal/ OpinionJournal.com, Jul. 11). (& see letter to the editor, Oct. 23) (DURABLE LINK)
July 12-14 — Read the label, then ignore it if you like. “Two carpet installers who admit they read the label of an adhesive they used, admit they understood the adhesive was flammable and should not be used inside, used it inside anyway, caused an explosion, were burned badly, sued, and won $8 million dollars.” (Phil Trexler, “2 installers get millions in blast suit”, Akron Beacon Journal, Jul. 10) (link and description via MedPundit, Jul. 10). (DURABLE LINK)
July 12-14 — Financial scandals: legislate in haste. The “chief sponsor of the House [financial-reform] legislation, Republican Michael G. Oxley of Ohio … complained that some aspects of the Sarbanes bill appeared to be turning into ‘a gravy train’ for trial lawyers.” (Richard A. Oppel Jr., “Senate Backs Tough Measures to Punish Corporate Misdeeds”, New York Times, Jul. 11). House Republicans are particularly critical of provisions which, in line with a long-term goal of the plaintiff’s bar, increase the time permitted to bring securities fraud lawsuits. The Mobile Register editorially warns that a number of ideas emanating from the Senate “would be a huge boon to voracious plaintiffs’ attorneys. And the last thing the nervous stock market needs, now or ever, is to worry about companies being ruined by ever-more creative lawsuits whose practical effect would do far more to enrich the lawyers than to protect the interests of individual investors.” (“Bush right, Shelby not, on business reform” (editorial), Mobile Register, Jul. 10). “Robert Musil” has some thoughts on the newly popular idea of requiring CEOs to certify their company’s financial filings on penalty of perjury (Jul. 7). And before assuming that it was management malfeasance alone that destroyed the market value of such companies as WorldCom and Adelphia, it would be wise to note that Europe, without benefit of major scandal, has managed to see most of the value of its telecom stocks evaporate since the sectoral bubble burst, with historic enterprises like Deutsche Telekom, France Télécom and Royal KPN of the Netherlands losing 80 or 90 percent of their value, and Britain’s BT doing not much better (Edmund L. Andrews, “Europe Shares Pain of the Fall in Phone Stocks”, New York Times, Jul. 11). And see Steve Chapman, “Real and phony fixes for corporate corruption”, Chicago Tribune, Jul. 11). (DURABLE LINK)
July 12-14 — “Court Tosses ‘Sopranos’ Suit”. Following an appellate court’s ruling against them, the Italian-American Defense Association has dropped its suit against HBO charging that “The Sopranos” offends the dignity of Italian Americans in supposed violation of the Illinois Constitution’s “individual dignity” clause. Score one for free speech (N.Y. Daily News, Jul. 2)(see Apr. 6-8, 2001). (DURABLE LINK)
July 30-31 — Tobacco fees: one brave judge. Although most of the press from the New York Times on down continues to ignore this developing story, on July 10 Manhattan Supreme Court Justice Charles E. Ramos “told lawyers for six law firms that were awarded $625 million for their work in the historic 1998 tobacco settlement in no uncertain terms that he will examine whether the fee award is unethical. The April 2001 decision of the arbitration panel that issued the award set off ‘a flashing light that got my attention’ that the $625 million fee might violate the New York Code of Professional Responsibility’s proscription against illegal or excessive fees, Ramos told the throng of lawyers that filled his courtroom,” reports Daniel Wise in the New York Law Journal. Virtually the entire array of lawyers in the case was lined up against Judge Ramos: the trial lawyers themselves of course were furious, the tobacco companies were disputing his jurisdiction over the matter, and New York Attorney General Eliot Spitzer’s office was defending the mega-fees in a brief. Outside the courtroom, meanwhile, establishment legal ethicist Stephen Gillers was scoffing that “There doesn’t seem to be any legal or ethical basis for this inquiry.” There doesn’t? The state’s Disciplinary Rule 2-106 bars lawyers from collecting “an illegal or excessive fee,” and it says nothing about excessive fees being okay so long as the other parties in the case have been dragooned into not objecting. (Daniel Wise, “New York Judge Begins Query Into Tobacco Fees”, New York Law Journal, Jul. 12)(see Jun. 21-23 and Oct. 25-27, 2002; May 11-13, 2001). Correction Jul. 31: our first report mistakenly named the scene of these proceedings as the Superior Court; it is in fact the Supreme Court (which in New York is a trial court and not the highest appellate body).
On July 25 the judge held a further hearing which even fewer press outlets seem to have covered — the only account we’ve seen ran on the Bloomberg wire (“N.Y. Judge Calls Tobacco Pact Legal Bills ‘Offensive”, Bloomberg News Service, Jul. 25, fee-based archive (search on date in litigation category, pulling up additional screens if necessary)). Judge Ramos pointed out that the $625 million fee amounted to $13,000 an hour, a figure he described as “offensive”. Although the trial lawyers who are set to collect those fees include many powerful insiders in New York politics — the sort of men who can make or break the career of an elected judge — the judge seemed admirably uncowed by them. He compared the lawyers’ overcompensation to “the problems now emerging in large corporate America”, which prompted Philip Damashek of Schneider, Kleinick, Weitz, Damashek & Shoot, which was awarded $98.4 million in fees, to demand an apology for “comparing me and my colleagues to these Enron people'”. And Ramos “ordered another attorney at the firm, Harvey Weitz, removed from the courtroom when he loudly told partner Brian Shoot not to let the judge interrupt him. ‘You’re sandbagging us,’ Weitz shouted at Ramos as he was escorted out. The judge threatened to hold him in contempt.” The judge “ordered the attorneys to file a new application supporting their fee request by August 30, or submit papers challenging his jurisdiction in the matter. The attorneys declined to say after the hearing how they planned to respond.” Addendum: Daniel Wise of the New York Law Journal also covered the July 25 hearing and provides further details of an oral argument that was “unparalleled — for its vitriol, much of it aimed at the judge.” (“New York Tobacco Fee Hearing Has Lawyers Smoking”, Jul. 26).
More: in Texas, Attorney General John Cornyn’s ethics investigation is turning up the heat on the Big Five tobacco lawyers who for years now have dodged being put under oath over the terms of their hiring by Cornyn’s predecessor Dan Morales (Brenda Sapino Jeffreys, “Investigation of Texas Tobacco Litigators Still Smokin'”, Texas Lawyer, Jul. 22)(see Jul. 15 and links from there). (DURABLE LINK)
July 30-31 — Lying’s not nice, especially when representing the bar. “Oregon’s highest court has suspended for two years an insurance defense lawyer who lied, while being deposed, to conceal a strategy that allowed his client to control both sides of a claim. … The lawyer, John P. Davenport of Portland, Ore., represented the Professional Liability Fund, an insurer established by the State Bar to provide mandatory malpractice insurance.” The Fund used a shell corporation to buy up unpaid malpractice judgments at a discount from claimants, which it could then dismiss; the strategy is not in itself illegal, but the court found that Davenport had not provided forthcoming answers to a bankruptcy examiner about the shell’s dealings with a bankrupt couple who had sued their lawyer for malpractice. (Annie Hsia, “Two-year Ban for Oregon Lawyer Who Lied”, National Law Journal, Jul. 18). In other sanctions news, a federal judge has ordered French drug company Aventis “to pay $32.6 million in attorney fees for vexatious conduct in patent litigation against Bristol-Myers Squibb Co. Southern District of New York Judge Robert P. Patterson said last week that [the company] ‘defiled the temple of justice’ by obstructing depositions and discovery, instructing a witness not to answer questions at a deposition and advancing baseless claims.” The finding of vexatious conduct is on appeal (Tom Perrotta, “Drug Company Must Pay Fees of $32 Million”, New York Law Journal, Jul. 29). (DURABLE LINK)
July 29 — “Bush Urges Malpractice Damage Limits”. “President Bush urged Congress today to impose substantial nationwide restrictions on medical malpractice cases, arguing that million-dollar verdicts are driving up health care costs and forcing doctors out of business.” Sen. John Edwards (D-T.Law.) promptly charged that under the White House proposal, when a child is blinded or paralyzed for life, “He [Bush] proposes what they get for that is $250,000.” (Mike Allen and Amy Goldstein, Washington Post, Jul. 26). In fact, as Edwards cannot but be aware, damages to cover the costs of care, lost income and other monetizable damages, which commonly would run into the millions in the case of a paralyzed child, would remain fully collectable as before; the mooted limit would apply only to the portion of awards which covered “non-economic” elements such as pain and suffering. (Bush remarks; White House “Policy in Focus“; HHS report on effects of medical liability, PDF format). The Senate Republican Policy Committee has published a paper collecting some of the malpractice-suit-crisis “horror stories” from recent months, with links to accounts in the press (Jul. 25). See also Steve Friess, “Liability costs drive doctors from practice”, Christian Science Monitor, Jul. 17; “Soaring Liability Costs Blamed for Non-Profit Nursing Home Closures”, Dallas Morning News, Jul. 25 (reg); Corpus Christi (Tex.) Caller special section, letters. Sasha Volokh and correspondents discuss the federalism angles (Jul. 27). (DURABLE LINK)
July 29 — Law lectures needn’t be dull. We were familiar with some of the writings of Harvard law prof David Rosenberg, but we had no idea his lecture style was so … colorful, as evidenced by this best-of collection (Harvard Law Record, 1999) (via Eve Tushnet, Jul. 25, who got it from Stuart Buck, Jul. 22 and Jul. 25; and thanks to Dan Lewis for the web-archive link). (DURABLE LINK)
July 29 — New medium, new opportunities. John Steele Gordon, the history-of-business columnist for American Heritage and author of such acclaimed books as A Thread Across the Ocean and The Business of America, devotes his new column to comparing the rise of online publishing with the technological developments, such as the rotary press, that ushered in the era of the metropolitan newspaper in the years before the American Civil War. “When the young can enter a business and experiment with new technology at little risk, revolution is on the way.” Small internet news-gathering and news-assemblage sites can now “have a great impact. … [One of them] has been giving tort lawyers and activist judges fits by assembling in one much-visited site called overlawyered.com the most egregious lawsuits and decisions from around the country and beyond. It makes for reading that is often hilarious, infuriating, and sad at the same time.” (“The Man Who Invented the Newspaper”, Aug./Sept.). (More on weblog impact: John Leo, “Flogged by Bloggers”, U.S. News, Aug. 5). While on the subject of nice publicity, we won’t even try to summarize all the additional exposure this site and its editor have gotten in the past few days from the lawyers-sue-fast-food controversy, but we will note that our editor’s O’Reilly Factor appearance of last Tuesday, on educational lawsuits, is now online at FoxNews.com (“Watch out Teachers!”, Jul. 24). (DURABLE LINK)
July 26-28 — Fat suits, cont’d. George Washington University law prof John Banzhaf, who got himself so much publicity in the tobacco round, says he’s advising the plaintiff who just announced that he’s suing fast-food chains, so we know the suit must be serious (right?) (Geraldine Sealey, “Fat suits filed”, ABC News, Jul. 25; BBC, “Fat Americans sue fast food firms”, Jul. 25, and “Talking Points“). As for our editor, he’s in considerable demand on the subject, having appeared over the past day on (among others) Fox News Network, CBS radio, and the BBC. This just in: debating our editor on Laura Ingraham’s radio show Friday evening, Banzhaf announced that he is working up a possible suit against milk marketers which will charge that the “Milk Moustache” campaign should give rise to liability because it doesn’t warn consumers that skim milk is sometimes better for you than whole milk. Is he serious? He sure sounded like it (discussion on Democratic Underground). (DURABLE LINK)
July 26-28 — Third Circuit: prisoners may be entitled to watch R-rated films. “Inmates in federal prisons who challenged a ban on allowing them to watch movies rated R or NC-17 have won a new shot at making their case now that a federal appeals court has ruled that a Western District of Pennsylvania judge was too quick to rule in favor of the government. In Wolf v. Ashcroft, the 3rd U.S. Circuit Court of Appeals found that U.S. District Judge Sean J. McLaughlin of the Western District of Pennsylvania ‘did not conduct a proper, thorough analysis’ of whether the ban is ‘reasonably related to legitimate penological interests.'” The trial judge’s ruling against the prisoners, furthermore, “improperly relied on ‘common sense'”. (Shannon P. Duffy, “Prisoners’ Suit Over R-Rated Movies Worth Another Look, Says 3rd Circuit”, The Legal Intelligencer, Jul. 25). (DURABLE LINK)
July 26-28 — Skittish at Kinko’s. The clerk at the copy shop raises objections to a request to photocopy a newspaper column: “Do you have permission to duplicate this copyrighted material?” But it’s my column, the customer protests — I wrote it! “Look — my picture is on the top.” “He told me that didn’t matter, that corporate Kinko’s was overburdened with copyright lawsuits, and consequently he wasn’t about to run my copy job. Sheesh.” (“Inane Laws and Egotistical Copy Men”, Cornell Daily Sun, Mar. 4). (DURABLE LINK)
July 26-28 — Update: cost of clipboard-throwing only $8 million. A San Diego judge has reduced the damage award from $30 million to $8 million in a case against the Ralphs supermarket chain over the conduct of a manager who over the course of a decade is alleged to have verbally harassed female employees and thrown such objects as a telephone and clipboard at them. Superior Court judge Michael Anello called the damages “grossly excessive” and the result of the jury’s “passion and prejudice,” and said “the evidence was insufficient to support the conclusion that defendant [corporation] approved of or ratified [the manager’s] conduct.” The decision is “a slap in the face of women’s rights,” countered the plaintiffs’ co-counsel (see Apr. 19-21) (Alexei Oreskovic, “Judge Slashes Sex Harassment Damages Against Ralphs Grocery”, The Recorder, Jul. 17). (DURABLE LINK)
July 25 — “Ailing Man Sues Fast-Food Firms”. You knew it was coming: “A New York City lawyer has filed suit against the four big fast-food corporations, saying their fatty foods are responsible for his client’s obesity and related health problems. Samuel Hirsch filed his lawsuit Wednesday at a New York state court in the Bronx, alleging that McDonald’s, Burger King, Wendy’s and KFC Corporation are irresponsible and deceptive in the posting of their nutritional information, that they need to offer healthier options on their menus, and that they create a de facto addiction in their consumers, particularly the poor and children.” Quotes our editor, who takes the dim view of the suit that you would expect (Michael Y. Park, FoxNews.com, Jul. 24). (DURABLE LINK)
July 25 — “Surgeon halts operation over foreign nurses’ poor English”. Britain: “A surgeon at a leading hospital has said he had to stop halfway through an operation because foreign nurses could not follow his instructions. As a result, he said he has been threatened with disciplinary action for racism. David Nunn, a consultant orthopaedic surgeon at Guy’s and St Thomas’s Hospitals, in London, told The Telegraph that he was unable to complete the operation last week without certain instruments. When he asked the nurses, all of whom were foreign, to find them, ‘I was met with a selection of bemused reactions,’ he said. ‘They were produced only when the scrub nurse de-scrubbed and went to find them herself.’ Mr Dunn, 48, said his superiors had accused him of racism and threatened him with being disciplined.” Dunn said the influx of nurses from outside Britain are “without doubt well-trained and dedicated professionals, but if medical staff cannot communicate effectively then patients’ care may be put at risk.” Careful what you say, doc… (Richard Eden, Daily Telegraph, Jul. 22). (DURABLE LINK)
July 25 — “Licensing Deadline Sneaks Up In District”. “Consultants, landlords, music teachers, nannies, massage therapists and other home-based workers in the District face fines of as much as $500 if they do not obtain a new type of city license by Aug. 31, but most are unaware of it. Self-employed individuals and District firms, including nonprofit groups, that collect more than $2,000 in annual revenue will have to obtain a master business license to legally sell their services.” More “than 60,000 businesses and individuals in the District face fines of as much as $500 if they don’t obtain a new type of city license by Aug. 31” — and have things really reached the point where it’s going to require a license from the government to practice independent journalism from your apartment? (Avram Goldstein, Washington Post, Jul. 21; “How D.C. Creates Chaos” (editorial), Jul. 23; Eugene Volokh, Jul. 23). (DURABLE LINK)
July 24 — Smog fee case: “unreal world of greed”. A California appeals court has thrown out an arbitration panel’s $88.5 million award of attorneys’ fees, amounting to an estimated $8,800/hour, to five law firms which had prosecuted a case against the state of California arguing the unconstitutionality of its former assessment of “smog impact fees” on cars registered from out of state. “The justices called the panel’s $88.5 million fee award ‘an unconstitutional gift of public funds’ that was not authorized by the Legislature. In a scathing concurring opinion, Justice Richard Sims said the award from the arbitration panel was ‘completely in outer space.’ ‘The fact that attorneys even requested a fee award of that magnitude from the taxpayers,’ Sims wrote, ‘is a testament to the unreal world of greed in which some attorneys practice law in this day and age.'” The five law firms included Milberg Weiss Bershad Hynes & Lerach, long a major political donor in California, as well as “New York’s Weiss & Yourman; San Diego’s Sullivan, Hill, Lewin, Rez & Engel; La Jolla, Calif.’s Blumenthal & Markham, and Berkeley, Calif., solo practitioner Richard Pearl.” (see Dec. 5, 2000, Jun. 22, 2001)(Robert Salladay, “Court rips $8,800 an hour in attorneys’ fees”, San Francisco Chronicle, Jul. 23; Mike McKee, “California Appeals Court Rips $88M Fee Award in Smog Case”, The Recorder, Jul. 23). (DURABLE LINK)
July 24 — Update: “Harassment by kids gets ex-teacher 50G” Following up on a story from last month: the city of New York has agreed to pay $50,000 to settle a lawsuit by a former Queens teacher who says his students had harassed him by way of derogatory comments about his immigrant status (from Sri Lanka), accent and ethnicity. “Legal experts said the suit was the first of its kind in which a teacher successfully brought a civil rights action alleging that students had created a ‘hostile work environment.'” The other noteworthy feature of the dispute (see Jun. 26) is the defense the city put forth, namely that it was powerless to discipline the students, who had special education (disabled) status, for insulting the teacher “because students with that classification have already been identified as having behavioral problems, and the verbal misconduct might be considered a manifestation of their disability,” as a city lawyer put it (John Marzulli, “Harassment by kids gets teacher 50K”, New York Daily News, Jul. 22). (DURABLE LINK)
July 23 — Welcome O’Reilly Factor viewers. Our editor was a guest on the top-rated TV talk show this evening, interviewed one-on-one by host Bill O’Reilly on the subject of parents threatening to sue teachers over their kids’ bad grades. We mentioned the recent Arizona case and an earlier Ohio case that we understand has been dismissed by the court; and here’s our theme page on overlawyered schools. (DURABLE LINK)
July 22-23 — Politicos’ “stagey” outrage at balance-sheet sins. “John Walker Lindh got 20 years this week for joining a terrorist network at war with his country. Lucky for him he didn’t try something really bad, like capitalizing an expense item. … President Bush, who spent 56 years on this earth without revealing the slightest passion for corporate reform, now says life will be intolerable if he doesn’t have a bill to sign within a couple of weeks. And he has sent signals that he doesn’t give much of a hoot what is in it.” (Michael Kinsley, “Stock Option Cure-All”, Washington Post, Jul. 19). “Even now, the mob waving pitchforks and torches finds the details of accounting, compensation and corporate governance too tedious to take seriously. But ‘reforms’ that ignore the role of incentives and competition will turn out to be monsters themselves.” (Virginia Postrel, “Business ‘Reforms’ Should Not Ignore Incentives and Competition”, New York Times, Jul. 18 (reg)). (DURABLE LINK)
July 22-23 — Nightmare under the palms. You retire to a Florida condo, and imagine that the hassles of life are over — that is, until you discover that a couple of your neighbors have turned asserting their legal rights into an art form. (Joe Kollin, “Sunrise condo residents get socked with bill because neighbors won’t pay”, South Florida Sun-Sentinel, Jul. 19). (DURABLE LINK)
July 22-23 — Disabled testing: hence, loathèd asterisk. In a settlement with a disabled-rights litigation group, the College Board has agreed to stop flagging the test scores of students who got extra time or other accommodations in taking its college admissions test. The effect will be to allow applicants to conceal from colleges whether they “took the test under normal conditions, or used a computer, worked in a separate quiet room, and had four and a half hours for the three-hour test. … High school guidance counselors said the elimination of flagging could set off a wave of new applications for accommodations, including some from students without real disabilities. … most of those who are accommodated have attention deficit problems or learning disabilities like dyslexia, a reading disorder.” “It’s very clear who’s been getting extended-time: the highest-income communities have the highest rates of accommodations,” said Bruce Poch, the dean of admissions at Pomona College in Claremont, Calif. “I think what’s going to have to happen now is that everyone will, in effect, get more time.” (Tamar Lewin, “Abuse Is Feared as SAT Test Changes Disability Policy”, New York Times, Jul. 15 (reg)). Among commenters: Kimberly Swygert at No. 2 Pencil (Jul. 15 and 17) and Joanne Jacobs (Jul. 15 and Jul. 17). We covered the controversy back in February 1999, May 10, 2000 and Feb. 9-11, 2001. (DURABLE LINK)
July 22-23 — Last-minute friends in Texas politics. “In 1998 [John] Sharp narrowly lost the lieutenant governor’s race to Republican Mr. Perry, who later became governor when George W. Bush became president.” Sharp drew about 15 percent of his financial backing from trial lawyers in that race, which actually probably isn’t all that high a percentage for a Lone Star Democrat. What was interesting was the timing: “A review by The News of finance reports in that matchup indicates that nearly half Mr. Sharp’s trial lawyer support came in the final eight days of the campaign and was not reported until after the race. For example, a few days before the election, Mr. Sharp collected $250,000 from Houston trial lawyer John Eddie Williams and $150,000 apiece from lawyers Walter Umphrey of Beaumont and Harold Nix of Daingerfield. And he got $15,000 from Michael Gallagher of Houston.” Reports of trial lawyer backing can damage a candidate in Texas campaigns, but when the lawyers donate at the last minute the voters may be none the wiser as they troop to the polls (Wayne Slater, “Trial lawyers’ cash at issue”, Dallas Morning News, Jul. 13). (DURABLE LINK)