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Letters
Posted July 6:
Given its leading role in the litigation against the tobacco industry, why exactly has the state of Florida decided to "approve the purchase of tobacco stocks for the government's $99 billion-state pension fund"? (June 21). If tobacco is such a bad thing (and it would have to be for the suit to have been anything but meritless), why is it all right for the state to turn around and invest in it?Come on, Florida, stick to a story and be consistent. Either tobacco should not be used, the tobacco companies are evil and your suit had merit OR there is nothing wrong with putting out this legal product and the suit was only brought to fatten up some plaintiff's lawyers. Which is it? -- William E. Davis, Esq., Ceres, Calif.
Regarding the "Love Your Neighbor" copyright dispute and Michigan attorney Julie Greenberg's letter warning that criticism of the lawsuit damaged her reputation and demanding that it be retracted (June 20), I sent the following email to Ms. Greenberg:"For a good read: http://www.overlawyered.com
"For a good laugh: http://www.patlaw.com
"Reading an account of your overbearing tactics against Overlawyered.com and against a charity group has inspired me to include the two above links with every email I send out. The idea of a charity using a biblical phrase in its fashion is causing harm is absurd. Your threats are a major reason why I believe strongly that the legal community in this country is out of control." -- Chris Covert
[We also received many other notes of support regarding the Love Your Neighbor affair.]
Regarding your June 25 item: I would *love* it if someone organized a class-action lawsuit against
lawyers who withheld information about safety problems with Firestone tires on Ford SUVs! -- Mike Sierra[Similarly from other readers.]
Regarding the expansion of auto insurance in Ohio (June 29): in Australia and the Netherlands it is very common for company cars to cover employees and their immediate families. In fact, I don't think I would accept a company car if only I could drive it. -- George Schwalbe, The Hague, Netherlands.[If we are correctly interpreting the account in the Columbus paper, the Ohio high court went further and insisted that employers must provide some coverage even for employees' driving of their personal vehicles, as distinct from company cars. See also letters, Aug. 1.]
Re: your article on the lawsuit against Duane Reade by lawyers for the handicapped in New York (June 29): A few weeks ago WNBC-TV's 6 o'clock local news carried a story about this. There were a suitable number of people in wheelchairs with I-can't- buy-aspirin- by-myself sob stories, lawyers with carefully prepared sound bites, and a microphone suddenly stuck into the face of some totally sandbagged Duane Reade store manager for his comment, thus making the story a balanced one.Needless to say, there was not a hint given that making aisles wide enough for two wheelchairs to pass at speed and no shelves higher than Toulouse-Lautrec could reach on tiptoe might have economic consequences in terms of closed stores and higher prices.
Worse, this "news story" was the lead story that night. It was the most important thing that had happened in the New York metropolitan region that day, at least in the judgment of the show's editor, and the lawyers had not even filed the suit. They had merely announced their intention to do so. Even by the standards of local television news -- if you'll pardon the oxymoron -- it was egregious water-carrying for the plaintiff's lawyers.
Of course, since Al Sharpton is in the slammer, the local stations each have an extra camera crew sitting around twiddling its collective thumbs. -- John Steele Gordon, North Salem, N.Y.
I am a big fan of Overlawyered.com and am always wryly amused and sometimes outraged at the stories you call attention to. However, I was shocked to see the story June 19 entitled "Keeping child in her lap = homicide conviction." Although the great majority of cases noted on the site illustrate the legal community's abuses of power, this seems to be a story where an extremely irresponsible and foolish parent made a bet with her son's life and lost. Bravo to the justice system in this rare circumstance where it served its purpose!You don't need me to tell you that the lion's share of safety laws are ridiculously overcautious; the laws that Latrece Jones violated, on the other hand are in place as a result of statistical probability analysis. For many years, car seats were used only at the discretion of a parent. After it was shown statistically that (properly used), a car seat dramatically increases a child's chances of survival, laws were made in many areas to enforce this practice.
Miss Jones, like the vast majority of drivers and passengers, probably felt that since they were only going a short distance, it would be okay. This mentality kills people every day. They don't realize that the chances of a collision are exactly the same whether you are going to another state or to the next block. They think that a short trip doesn't require a seatbelt, or a child's carseat. They ignore warnings, laws, and common sense.
Miss Jones is being punished not because her child was sitting in her lap, as your title suggests. Lap-sitting is not a punishable offense even here in California. Rather, she is being punished because her negligence toward the safety of her child resulted in his death. She will likely receive probation in lieu of two years of prison; yet how much worse a punishment is the death of her son.
Keep up the good work. Just remember as you do so that your goal is not lawlessness, but temperance. -- Peter Cress, California
In no way do I view the prosecution for criminally negligent homicide in the child restraint case to be excessive. Let's look at the facts.
1) The child had no ability to protect himself. He is completely at the mercy of the supervising adult(s).
2) Child restraint is the law, and is one that few would quibble with.
3) The child died as a direct result of the actions of the adults.
At this point, a prosecutor is faced with the following choices: ignore the failure to follow a widely-supported law, even though the consequences of that failure were the reason the law was created in the first place; go in for an even lesser charge, which I guess would be some sort of non-homicidal negligence, pretty silly given that we have a death; go for a criminally negligent homicide prosecution; or go for something more severe, such as manslaughter.
In this case, I believe the prosecutor took the correct action, and further acted in a proper manner by not seeking any jail time. An innocent child whose responsibility was entrusted to an adult was killed because the adult chose to ignore a sensible law designed to prevent the very thing that happened to him. And instead of going for some publicity-seeking murder charge, the prosecutor instead sought a conviction on what the action was: criminally-negligent (because the restraint law was violated) homicide (proper, because the child died). To seek no prosecution here would have been a dereliction of duty. -- John Kingston, Carle Place, N.Y.
[Sorry, but we remain troubled by this one. There's been controversy from early on about the practice of treating negligence as a crime when its consequences are sufficiently terrible, since to do so tends to undercut the traditional mens rea (evil intent) requirement of criminal law. From the news accounts, it seems undisputed that nothing could have been farther from Miss Jones' intent than to harm her child, nor was she was charged with being reckless in any other way; the auto collision was neither her fault nor even her driver's. It seems relevant to us, too, that the car seat regulation is a recently enacted one based on what Mr. Cress calls statistical probability analysis, leaving it arguably closer (since we are trotting out the Latinisms) to mala prohibita (wrong because it has been prohibited) than mala in se (wrong intrinsically). Like mandatory seat belt laws, child-restraint laws are indeed controversial among many who esteem liberty and distrust government's (or, as the case may be, the insurance lobby's) claims to care more about children than parents do. And both our correspondents agree in not wanting to send Miss Jones to prison for having yielded to a mother's primeval instinct to allow her child onto her lap -- another signal, in our view, that even those who cheered her prosecution don't really regard her lapse, or lap, as homicidal.]
It's unfortunate that Jeremy Hix (June 21), who got in so much trouble for wearing his bagpiper's uniform to his senior prom in Michigan, has a background that is Scottish, not Sikh. The Sikh faith requires adherents to carry a kirpan, a small ceremonial dagger. Watching an adherent of a minority faith go up against zero-tolerance would be most enjoyable -- there is nothing in the world more entertaining than the sight of two sacred cows engaged in furious head-butting. -- John LeBlanc, Montreal, Canada
I think your website sucks! Whoever constituted the "brains" or lack thereof was who instituted this sorry excuse for a website really needs to be involved in one tragic or life-changing incident. Imagine not being able to work any longer because your employer railroaded you out of a job with his company and blackballed your name. Imagine serving on a civil jury and then having the defendant (who ultimately won the trial) encourage local doctors and or businessmen not to deal with you or to "give you the treatment". Imagine having a loved one killed in an accident that was caused solely by a product defect that the manufacturer knew about and ignored cost-effective alternatives in the production process.This website is full of half-truths and idiotic soapbox speeches. If it wasn't for the First Amendment and other laws -- fought for and defended by lawyers -- your website would not be posted. I wish it was not posted but that is your right as an American. Of course, I wonder if you are true Americans. Why don't you go to Siberia or some other country where lawyers are not as prominent and the landscape is more pure according to your dumb standards.
I hope your website is shut down by lack of interest and I hope that each person responsible for the website meets with one experience in which they sorely need a lawyer. Don't call me; do it your freaking self. Have a rotten day. -- "Proud lawyer", via comment form
[The "proud lawyer" also listed a name and town, in North Carolina, but no email contact with which we could confirm his identity; absent that, we'll skip those identifying details.]
I was looking over your excellent web site and reviewed some of the items about "loser pays".In America the "right" to sue will never be taken away, and "loser pays" is always portrayed as something that would prevent poor but worthy plaintiffs from exercising their rights. Countersuits are essentially impossible to file when a defendant wins or the case is thrown out, no matter how absurd the allegation.
There needs to be some disincentive to the freedom enjoyed by the plaintiff's bar to sue whenever they want. The real way this should be handled, however, is "losing attorney pays", not "loser pays." Plaintiffs attorneys are the ones who confabulate new theories of negligence. They should be at risk for defense costs when the plaintiff loses. If a case has a high degree of merit, the plaintiff's attorney would pursue the case. But if the case has little merit, the attorney would have to seriously think about his own financial risk were he to lose. He would have to advise the potential plaintiff "look, your case is weak and I'm not going to put my own money into it." [The argument that a losing plaintiff's case has cost the attorney his time is inadequate ... what about the defense attorney's time, that the defendant must pay for?] Attorneys would undoubtedly participate in a "losing attorney pays" indemnity insurance program so that they can cover their own costs for cases on the margin, but that's totally appropriate. It's the equivalent of malpractice insurance. There might be fewer settlements of marginal cases but that's probably a good outcome, since settlements rarely have anything to do with truth or justice. It's about time that plaintiff's attorneys have a real disincentive to recommend an action when the real goal is a nuisance and a settlement, or the opportunity for fabulous wealth by cleverly weaving a web of fantasy. And this system protects meritorious cases.
I have reviewed a large number of medical malpractice cases (for the defense) and I see how inappropriate many of the complaints are, designed solely to try to squeeze settlement dollars from marginally involved physicians or hospitals, yet these docs endure irrecoverable personal, professional and financial consquences even if they were totally blameless and prevail.
Unfortunately, it would take legislation and favorable appeals court decisions to change the system, and all those guys are ... lawyers! -- Lawrence L. Faltz, M.D., F.A.C.P.
Regarding the case of the tipsy topless dancer (July 3-4), note that many clubs (if not most) have independent contractor relationships with their dancers so they don't have to pay social security tax and deal with tax withholding issues. Thus the tipsy topless talker can evade workers comp and go after the club under Texas' Dram Shop Act. -- Russell DePalma<< more letters >>
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