November 8-10 — By reader acclaim: “Father files suit after son fails to win MVP award”. “A Canadian father is suing the New Brunswick Amateur Hockey Association after his 16-year-old son failed to win the league’s most valuable player award. Michael Croteau is seeking about $200,000 in psychological and punitive damages from the association. He also demands that the MVP trophy be taken from the winner and given to his son, Steven.” (“Father sues team for not naming son MVP”, AP/ESPN, Nov. 7; Shawna Richer, “Father files suit after son fails to win MVP award”, Globe and Mail, Nov. 7). (DURABLE LINK)
November 8-10 — Welcome Weekly Standard readers. The magazine’s “Scrapbook” feature generously refers to us as “One of [its] favorite sites” (“The Scrapbook: DeWayne Wickham, Wellstone, and more”, Nov. 11)(requires print sub + reg) in the course of hailing a Miami federal judge’s recent ruling that the Americans with Disabilities Act does not require website operators to redesign their offerings for the convenience of blind customers (see Oct. 22). (DURABLE LINK)
November 8-10 — Asbestos opinions. The Supreme Court has just heard oral argument on Norfolk & Western Railway Co. v. Ayers, a case raising the question whether railroad workers who have not in fact developed cancer from exposure to asbestos can nonetheless sue under federal law for fear of same (Dahlia Lithwick, “Supreme Torts: How to get paid a million dollars for your phobias.”, Slate, Nov. 6; Marcia Coyle, “Litigating Over the Fear of Cancer”, National Law Journal, Oct. 30). The recent massive combined asbestos suit in West Virginia has served to expose the rift between plaintiffs’ counsel whose clients are seriously sick, and those whose strategy leads them to recruit other kinds of clients (Lisa Stansky, “Unusual Clash in Asbestos Case”, National Law Journal, Oct. 31). In the latest of several scorching columns he has written on the controversy, Stuart Taylor, Jr., charges that “lawyer-plutocrats continue to obscenely enrich themselves by using massive asbestos lawsuits and a disgracefully dysfunctional litigation system to extort billions of dollars from American consumers every year. The lawyers blackmail mostly blameless companies, while cheating the real victims of asbestos. This scandal in turn dramatizes how our lawsuit industry often operates as an engine of injustice — and as a drain on the economy, an inadequate vehicle for compensating people actually harmed by corporate wrongdoing, and a transparent fraud in its pretensions to punish those responsible for such wrongdoing.” (“Greedy Lawyers Cheat Real Asbestos Victims”, National Journal/The Atlantic, Oct. 1). See also James A. Lacey, “Asbestos Suits: Worse Than Enron”, New York Post, Oct. 9. (DURABLE LINK)
November 8-10 — Munched zoo animals, gets six months severance. “A German zookeeper, fired last month for eating animals in a town zoo, has been awarded six-months severance pay after reaching a settlement in a labour court. The town of Recklinghausen, north of Cologne, fired the zookeeper after he was caught barbecuing five Tibetan mountain chickens and two Cameroonian sheep at the zoo, popular with children who were allowed to stroke the animals. … Germany’s laws make it extremely difficult for employers to fire workers.” (“Animal feast zookeeper win pay claim”, Yahoo/UK Reuters, Nov. 7) (DURABLE LINK)
November 8-10 — “Lawyers Fight Over Louima Case Fees”. Continuing the tawdry saga last aired in this space July 24, 2001: “The Abner Louima police brutality case resurfaced in federal court Wednesday, as attorneys disputed the distribution of nearly $3 million in attorney fees amid accusations of slipshod lawyering, client poaching and greed. Johnnie L. Cochran, Peter Neufeld and Barry S. Scheck have filed a motion to prevent Louima’s first two lawyers — Carl W. Thomas and Brian Figeroux — from receiving any portion of the fees associated with the record $8.75 million settlement Louima received from New York City.” (Tom Perrotta, New York Law Journal, Oct. 18; “Louima’s first team of lesser-known attorneys seek share of $3 million”, AP/CNN, Oct. 18). “According to Scheck’s testimony, the relationship between the two groups of lawyers was tense from the very beginning, with members of both teams launching racial slurs.” (“Lawyers Fight Over Fees From Louima Settlement”, (WNBC-TV, Oct. 17). (DURABLE LINK)
November 7 — Some election results. The Senate results, as will be surmised, were a spectacular rout for organized trial lawyer interests, which had spent heavily to defend Democratic control of the upper chamber. (Another key litigation lobby ally, Sen. Dick Durbin (D-Ill.) (Jul. 7, 2000) did not face serious challenge and won easy re-election.) Of the three extremely wealthy trial attorneys who ran for U.S. House seats in West Virginia and Florida (Oct. 11-13), all lost by margins of 60-40 or worse (Humphreys, Jacobs, Hogan). And all of the nationally publicized state supreme court races seem to have been resolved in a manner favorable to litigation reformers. Mississippi Supreme Court Justice Chuck McRae, widely viewed as symbolizing his court’s runaway-litigation faction (Sept. 9-10), lost badly, actually coming in third in a three-way race with 23 percent of the vote. (Antoinette Konz, “Dickinson takes high court position”, Hattiesburg American, Nov. 6). Despite a nasty ad campaign against them (Nov. 1-3), Maureen O’Connor and Evelyn Stratton won convincing victories for seats on the Ohio high court, whose balance of power may shift as a result. Judges Robert Young (Michigan) and Harold See (Alabama), who have drawn trial lawyer fire in the past, were both re-elected, albeit narrowly in See’s case.
In governor’s races, on the other hand, there was little to cheer about, with trial-lawyer-backed candidates pulling out mostly narrow victories in Michigan, Oregon and Tennessee. We never expect much good news to come out of attorney general races, and were unsurprised to see New York’s Eliot Spitzer and Connecticut’s Richard Blumenthal glide to re-election; we’re also expecting the worst from Illinois’s incoming Lisa Madigan (Jan. 7). But we note GOP takeovers of the AG’s office in Michigan and Florida, as well as retention of the crucial Texas post. (full list at NAAG site)
A footnote: one of the engineers of the great 1998 tobacco heist, Florida Attorney General Bob Butterworth, was term-limited and deigned to run instead for a state senate seat in Broward/Palm Beach, but lost to the Republican candidate (WSVN-TV, Nov. 6). This continues the series of political pratfalls by which key players in the tobacco affair — the list includes former attorneys general Hubert Humphrey III of Minnesota, Dan Morales of Texas and Scott Harshbarger of Massachusetts, and Minnesota private attorney Michael Ciresi — have come up short when they tried to run for other offices. (DURABLE LINK)
November 7 — Scourge of the Super-Size order. The hullabaloo over suing fast-food chains has been great publicity for Washington-based law prof John Banzhaf, who finds himself the subject of a profile in the Washington Post (Libby Copeland, “Snack Attack”, Nov. 3), not to mention all the publicity furthered by his own website and its obesity links. Less respectful views are offered by syndicated columnist Doug Bandow (“Lawyers run amok”, TownHall, Nov. 5) and Southern restauranteur Robert St. John (“In state’s legal climate, ‘I could sue, … retire to Hawaii'”, Hattiesburg American, Oct. 15). (DURABLE LINK)
November 6 — Notation on Scruggs’ court file: to be “kept away from the press”. “Even as famed Pascagoula trial lawyer Dickie Scruggs testified in Hattiesburg Tuesday in a lawsuit over legal fees from asbestos litigation, records of the lawsuit were being withheld from the media by Jackson County officials. The file for the case … contains the original complaint in the lawsuit between Scruggs’ firm and Merkel & Cocke, a Clarksdale law firm that also handled asbestos cases in the 1990s. Scruggs believes that Merkel & Cocke owes him money for a case that the firm and Scruggs worked on together. … A handwritten note attached to the court file in Jackson County, found by a Sun Herald reporter, said, ‘This file is being kept away from the press/media, etc., but is not under seal per Court Order…’ The word ‘not’ was underlined twice for emphasis.” (Beth Musgrave and Karen Nelson, “Scruggs’ case file being kept away from media”, Biloxi Sun-Herald, Oct. 30). The next day county officials relented and agreed to let the newspaper see the file (“Court opens Scruggs file to newspaper”, Oct. 31). The paper’s editorialists call the withholding of the file “brazen” and “no innocent mistake”. (“Public records are not private property of government officials” (editorial), Oct. 31). (DURABLE LINK)
November 6 — Choirgirl vs. cathedral. In Britain, a judge has dismissed the complaint that 13-year-old choirgirl Pollyanna Molloy filed against the Dean and Chapter of Lincoln Cathedral (consecrated 1092) after she was passed over for a “cope”, a senior chorister position. Molloy says she was “utterly destroyed” to learn that a less experienced girl had been chosen for the honor, and her lawsuit claims damages for mental anguish. Molloy’s parents say they plan to appeal the judge’s order. (“Judge throws out choirgirl’s writ”, Lincolnshire Echo, Oct. 30; Jonathan Petre, “Girl sues cathedral for choir honour ‘snub'”, Daily Telegraph, Sept. 10). (DURABLE LINK)
November 6 — “Google sued over search ratings”. “Top billing in Google search results has become so coveted that one Web hosting company is suing for it. Search King, an Oklahoma City-based Web site network and advertising seller,” claims in its federal complaint that the popular search service “purposefully reduced Search King’s value, as well as that of Web sites hosted by Search King,” by downgrading its rankings. “According to the complaint, the Web hosting company in August started the PR Ad Network — an advertising network in which it sold text links on the popular Web sites to get them a better listing in Google’s results.” Google has recently been reported to have cracked down on “link farm” techniques by which sites are artificially induced to link to each other for purposes of boosting the beneficiaries’ search results. (Stefanie Olsen, ZDNet, Oct. 22). (DURABLE LINK)
November 4-5 — Campaign roundup. As we prepare to vote:
* Election Day is just the start: “both major parties have recruited unprecedented armies of lawyers — at least 10,000 on the Democratic side — for possible recount battles but also to keep an eye on voting procedures. …The campaign’s tone also shows the indelible mark of the 2000 election. The [Florida] recount battle signaled that lawyers can be as important as voters in shaping the outcomes of tight races.” Elections expert Larry Sabato says we “may not know for sure who controls the House and Senate until December or January.” (Gail Russell Chaddock, “As vote arrives, lawyers are ready”, Christian Science Monitor, Nov. 4). More: John Fund, “Have You Registered to Sue?”, OpinionJournal, Nov. 6.
* Medical malpractice reform has flared as an issue in races across the country. A very small sampling: the Tennessee governor’s race (Bill Poovey, “Hilleary says malpractice suit awards need a limit”, Knoxville News-Sentinel, Nov. 1); the Texas attorney general’s race (Jim Belew, “Abbott touts solution for healthcare”, Conroe Courier, Oct. 31); the Oregon governor’s race (“Governor hopefuls respond to readers”, Salem Statesman-Journal, Oct. 28 — scroll to near end); the Ohio high court races (“Taft says a GOP high court will fix malpractice problems”, Toledo Blade, Oct. 31; the Maryland governor’s race (“Maryland medical society turns against Townsend”, Baltimore Sun, Oct. 31); Pennsylvania’s 13th District U.S. House race (John Anastasi, “Doctors group backs tort reform supporters”, PhillyBurbs.com, Nov. 3); the Florida governor’s race (Mary Ellen Klas, “Candidates clash on medical liability”, Palm Beach Post, Oct. 16); and Mississippi state legislative races (Matthew Coleman, “Lawyers’ group targets Lincoln County senator”, Brookhaven (Miss.) Daily Leader, Oct. 9).
* In Connecticut, attorney Martha Dean has taken up the thankless task of running against the Northeast’s most successful political demagogue, Attorney General Richard Blumenthal, and has been making a spirited job of it (Edmund H. Mahony, “Attorney Takes On A General”, Hartford Courant, Oct. 19; Ray Hackett, “GOP challenger: Blumenthal’s high-profile cases waste tax dollars”, Norwich Bulletin, Oct. 28; “Dean says Blumenthal should stop Microsoft suit”, AP/WSFB-TV, Nov. 3). In news coverage no longer online, Dean has assailed Blumenthal for his continued denials that there was anything wrong with the way he picked his former law partners for the fabulously lucrative job of representing the state in the tobacco litigation (see Feb. 3 and Feb. 16, 2000).
* Of donations to federal candidates this election cycle by California’s 40 biggest law firms, which mostly represent corporations and other large institutions, 62 percent of the money has gone to Democrats, 35 percent to Republicans. (Jason Dearen, “Big-Firm Backing”, The Recorder, Oct. 29; “By the Numbers”). What, you thought it would be any different?
* In West Virginia’s hotly contested House race, asbestos plaintiff’s lawyer James Humphreys, “who made $10 million from his successful law practice last year, has spent $5.2 million of his own money in his quest to unseat Republican Shelley Moore Capito. Two years ago, the Charleston Democrat spent $6.1 million of his own cash in a narrow loss to Capito.” Make him spend it all, Shelley! (Karin Fischer, “Humphreys’ top contributor is himself”, Charleston Daily Mail, Oct. 24; “Bush pre-election drive stops in W.Va.”, Huntington Herald-Dispatch, Nov. 1; “Elections 2002: West Virginia House rematch”, UPI, Oct. 22).
More: A Washington Times editorial reminds us that trial lawyers have staked many, many chips on Michigan AG and gubernatorial candidate Jennifer Granholm; her GOP opponent, Lt. Gov. Dick Posthumus, “as the majority leader of the state senate tenaciously pushed the 1995 tort reforms through the legislature, and has been the personal-injury lawyers’ Public Enemy No. 1 ever since.” (“Lawsuit abuse”, Nov. 4; see Oct. 9). Those following Missouri politics will want to check out retired judge Ralph Voss’s website calling for voters to reject several incumbent judges. And here’s a list of local webloggers who will be following key races across the country (courtesy DailyPundit). (DURABLE LINK)
November 4-5 — “Lawyers who sue to settle”. L.A. Times profiles local attorney Morse Mehrban, a major user of California’s bounty-hunting charter Proposition 65, whose exploits include filing 400 separate claims against candle makers and more than a dozen against fireplace log makers, claiming their products emit toxic fumes when burned. “A group of Los Angeles-area hardware stores paid Mehrban $27,500 last year to settle a lawsuit claiming that discarded metal filings from key-duplicating machines posed a threat of lead contamination.” A Los Angeles judge who dismissed one of Mehrban’s cases — against a hotel for failing to post signs warning that cigarette smoke in public areas of the hotel was toxic — “likened the lawsuit to ‘racketeering.’ … Though [Mehrban] bills his time at as much as $400 an hour and drives a Mercedes roadster, he says he’s not in it for the money.”
“The plaintiff in many of Mehrban’s suits is Consumer Cause Inc., which describes itself as a statewide advocacy group. Its mailing address is the Brentwood home of Mehrban’s mother, Rafat Efraim, who for a time was listed on state incorporation records as the group’s only officer. According to Mehrban, Consumer Cause now has five officers, including his mother and fiancee. He declined to identify the other officers.” In one case Mehrban filed, “the manufacturer’s lawyer called Mehrban’s mother to the witness stand during a pretrial hearing in an effort to show that Consumer Cause was a mere front for Mehrban’s legal practice. Efraim speaks only Farsi and testified through an interpreter. Asked the name of the consumer group, she replied: ‘Help the customers.’ Efraim said she did not know whether it had any other officers.”
However, the Times reports that Mehrban has also represented clients whose independent existence will be familiar to some of our readers, including the National Coalition of Free Men (on whose behalf he filed suit recently against Los Angeles County, saying it was being discriminatory by maintaining a commission on women’s issues but not one for men’s) and the National Council Against Health Fraud (on whose behalf Mehrban went to court over the effectiveness of homeopathic remedies; numerous favorable mentions of Mehrban turn up on QuackWatch and he is listed on QuackWatch’s Legal Advisory Board). According to the Times, Mehrban is currently in court suing dentists on the claim “that the mercury in silver fillings could cause birth defects and diseases”. We wonder how that sits with his friends over at the NCAHF, which recently voiced agreement with the view of the American Dental Association that a different lawyer’s West Coast suit against mercury fillings constitutes “an egregious abuse of the legal system.” (see Jul. 16). (Monte Morin, Los Angeles Times, Oct. 26). For more on Prop 65 litigation, see Daniel Blackburn, “The be-all, catch-all”, San Luis Obispo New Times, Mar. 7. (DURABLE LINK)
November 4-5 — Self-defense, of course. Former policeman Eddie Myers fired 36 shots at Emma Horton from three different guns, hitting her 14 times. Last month a jury acquitted Myers on grounds of — what else? — self-defense. “This is a runaway jury and crazy verdict,” said Holmes County District Attorney James Powell III. Defense attorney Chokwe Lumumba disagreed, saying Myers was reasonably in fear of his life: Horton, who was an assistant police chief and Myers’s sister-in-law, was armed and Myers said she had reached for her gun. When found, “Horton was armed, but her gun was found strapped in its holster on her body.” (Jimmie E. Gates, “Ex-cop offers apology to family”, Jackson Clarion-Ledger, Oct. 23). (DURABLE LINK)
November 4-5 — You breached my privacy, says serial killer. Australia: “Serial killer Ivan Milat could receive up to $40,000 in compensation over alleged breaches of [New South Wales] privacy laws, State Parliament heard yesterday. Milat has lodged a complaint with the NSW Privacy Commission over the public release of x-rays taken last year when he swallowed three razor blades, 24 blade staples and a nail-clipper chain. Milat claimed he did this in protest at his solitary confinement but prison authorities believe the killer was hoping for a transfer to a medical facility from which to escape…. Milat, who is serving seven life sentences for the murder of seven backpackers between September 1992 and November 1993, stood to gain up to $40,000 in compensation if his complaint was upheld, he said. … ‘Milat believes as a result of those x-rays becoming public, that his personal rights have been impinged,’ [Corrective Services Minister Richard Amery] told Parliament.” (Linda Silmalis, “Milat’s compo bid could pay $40,000″, Sydney Morning Herald, Oct. 30). (DURABLE LINK)
November 4-5 — “Resounding victory” for Microsoft. Last Friday’s ruling was a rebuke to activist state attorneys general and others who’d wanted to pursue the technology company to the bitter end. “U.S. District Judge Colleen Kollar-Kotelly embraced, with minor changes, the settlement struck last winter aimed at addressing Microsoft’s violations of antitrust laws. …And she all but ridiculed the states for the legal theories they put forth to justify tougher restrictions on the Redmond, Wash., company.” (Jonathan Krim, “Judge Accepts Settlement in Microsoft Case”, Washington Post, Nov. 2; Dennis J. Opatrny, “Reaction Mixed on Microsoft Decision”, The Recorder, Nov. 4). (DURABLE LINK)
November 1-3 — WHO demands pretzel de-salting by law. “Far from just encouraging people to leave aside the salt pot to prevent high blood pressure, governments should resort to legislation to cut the amount of salt in processed foods, the World Health Organisation (WHO) said Wednesday.” The transnational agency for years has been pushing governments to restrict tobacco, which seems to have whetted its activist spirit. (“East Less Salt — By Law, Says WHO”, AFP/Discovery Health Channel, Oct. 30). In Australia, “Take-away [take-out] chains may face pressure to end cheap deals on super-sized meals under a radical plan to be proposed to the Federal Government to combat obesity. Commercial television networks could also face new restrictions on screening fast-food and confectionery advertisements, especially to children.” (Fia Cumming, “New laws target fast food”, Sydney Morning Herald, Oct. 13). See also Andrew Ferguson, “Tobacco Lesson for McDonald’s in Fat War”, Bloomberg.com, Sept. 10 (interview with John Banzhaf); Iain Murray, “Slaughtering the Fatted Calf”, TechCentralStation, Aug. 19. (DURABLE LINK)
November 1-3 — Mudslinging in Ohio high court races. Trial lawyers and labor unions have been funding attack ads against two Republican candidates for the Ohio Supreme Court, incumbent Justice Evelyn Stratton and Lt. Gov. Maureen O’Connor, in a campaign so ugly that it has drawn a formal condemnation from the Ohio State Bar Association. “The ad, produced by the Citizens for an Independent Court political action committee, depicts laughing businessmen in suits inside a limousine, as a narrator states Justice Stratton and Ms. O’Connor are on ‘their side.'” (Jim Provance, “State bar assails ad in Ohio court race”, Toledo Blade, Oct. 22; Emily Heller, “Attack ads, big money set tone again this year”, National Law Journal, Oct. 28). Ohio GOP chairman Bob Bennett identifies an element of hypocrisy: “The same trial lawyers who funded this ad were outraged only two years ago when similar tactics were used against Justice [Alice Robie] Resnick,” one of their own favorites. (Liz Sidoti, “Group’s ad links GOP Supreme Court candidates to big business”, AP/Akron Beacon Journal, Oct. 16)(see Oct. 30, 2000). On judicial races in other states, see “Courting the Vote”, National Law Journal, Nov. 1 (fewer big fights between trial lawyers and their opponents than two years ago, Mississippi and Ohio aside). (DURABLE LINK)
November 1-3 — “Mom who drugged kids’ ice cream sues”. “A Phoenix mother who admitted lacing her daughters’ ice cream with prescription tranquilizers is suing a health care provider and others, saying they are responsible for her drug-induced delirium at the time. Jodi Lynn Henry, 38, who was acquitted in July of attempted murder charges, filed a medical malpractice claim in Maricopa County Superior Court against Jewish Family Services, a nurse practitioner and ValueOptions, a mental-health care provider.” (Carol Sowers, Arizona Republic, Oct. 30). (DURABLE LINK)
November 11-December 12 — Month-long hiatus/editor’s forthcoming book. Overlawyered.com will be on hiatus for about a month to allow our editor to attend to some personal business that requires his full attention. There are a lot of great items in our pipeline, but they’ll have to wait. We’ll probably have some access to email, though.
In the mean time, we’re very happy to announce that our editor’s third, newest book, The Rule of Lawyers: How the New Litigation Elite Threatens America’s Rule of Law, is not only completed but at the printers (St. Martin’s Press) It’s due out in January, just in time for what is widely expected to shape up as a big debate over civil justice reform in the new (and relatively reform-friendly) U.S. Congress. Its subject is the rise of mass litigation, from asbestos and silicone breast implants to the tobacco and gun crusades. It’s got chapters on how the litigation industry successfully manipulates juries, the political process and the press, and it concludes with what we think are some new reform ideas. Although many of the book’s themes will be familiar to our readers, most of the material in the book has never appeared on this site.
Okay, here’s the sales pitch: even though the book won’t appear in stores for a few more weeks, you can pre-order it now at (as of this writing) a handsome 30% discount. Placing a pre-order not only gets you a copy of the book in extra-timely fashion, but also helps stir up interest, alerting the publisher and the wider bookselling community to the presence of reader demand. If you buy through our online Amazon bookstore, a portion of your purchase price will also go to support the work of Overlawyered.com. Editors interested in excerpting chapters or assigning the book for review, incidentally, should contact St. Martin’s Press directly at (212) 674-5151 and ask for Joe Rinaldi of the Promotion Department. The book also has its own fledgling website.
How timely is our subject? In her new book The Case Against Lawyers (see our Oct. 3 commentary), TV host Catherine Crier not only pulls together countless funny/outrageous case stories from the legal system, but concludes with a ringing call for reforms that include loser-pays and restrictions on lawyers’ contingency fees. Crier generously credits this site and its editor as a major source of material, observing in an “Author’s Note”: “The Internet is a truly extraordinary tool. One particular site has proved absolutely invaluable (and infuriating): Walter Olson’s overlawyered.com is the definitive source for daily updates on the struggle against legal insanity.” We’re delighted to see that The Case Against Lawyers has just made this week’s New York Times best-seller list, and we encourage you to buy it as well as buying The Rule of Lawyers.
Finally, this would make a good time to join our mailing list, since we’ll be sending out an email to list members alerting them when the site resumes regular posting in mid-December. List members receive updates, typically every couple of weeks, which contain snappy summaries of what’s new on the site.
See you sometime in mid-December, by which time we hope our personal business will have been brought to a happy conclusion. Fly swiftly round, ye wheels of time, and bring the promised day!
P.S. Our readers are great. The Amazon sales ranking for The Rule of Lawyers started at #1,483,699 at 7 a.m. on Nov. 11, when the above was posted. By 11:30 a.m. it had climbed to #2,356 and by 9 p.m. to #979. (DURABLE LINK)
November 11-12 —Oops. In our Oct. 30-31 item on traffic counts for this site, our unfamiliarity with our new statistics program led us to overcount pages served by about 20 percent. See update to earlier post. Sorry! (DURABLE LINK)