September 15 — Got to love us. We noticed yesterday morning that this site’s tracking counters had begun ticking away like mad and that a large percentage of our new visitors were from domains at official U.S. government agencies. For a moment we wondered whether we were under some sort of surveillance. Then to our relief and elation we discovered we’d been written up in the Washington Post, specifically in Richard Morin’s and Claudia Deane’s column “The Ideas Industry”, which covers the policy world. “Here’s an Internet address you’ve got to love: http://www.overlawyered.com, a Web site recently launched by Manhattan Institute senior fellow Walter Olson. Olson writes that he launched the site to document ‘the need for reform of the American civil justice system.’ The page is updated regularly with legal horror stories, data links and such.” (link now dead).
September 15 — “A few rhinestones shy of a full tiara”. Organizers of the Miss America pageant backtrack on their plans to drop questions in which contestants are asked to certify that they’ve never been married or pregnant. The idea of the change “was to bring the contestant contract into compliance with New Jersey laws against discrimination”, CEO Robert Beck said in an affidavit filed in connection with a legal action by state pageant directors challenging the new rules. Between remodeling the Boy Scouts and cases like this, New Jersey discrimination law certainly keeps itself busy. (Yahoo/AP, link now dead). In the St. Petersburg (Fla.) Times, columnist Robyn Blumner says pageant officials, in their struggle to disguise a good-looks contest as an exercise in diversity awareness and feminist empowerment, “must be a few rhinestones shy of a full tiara”. (full column)
September 15 — Perps got away, but equity was served. Employment lawyers are watching the fate of Lanning v. SEPTA, a case in which a three-judge panel of the Third Circuit ruled against the Philadelphia transit authority for having had the temerity to prefer transit-cop recruits who could run far enough and fast enough (1.5 miles in 12 minutes) to stand a decent chance of nabbing a fleeing suspect before getting tuckered out. A higher percentage of men than of women passed the test, not surprisingly since the average man significantly outdistances the average woman on leg strength, aerobic capacity, and suchlike variables. But that meant the test had “disparate impact” and was legally suspect. By a two-to-one vote, the appeals panel concluded that federal antibias law precludes SEPTA from maintaining anything more than “minimum requirements”. The transit agency is petitioning the U.S. Supreme Court for certiorari. (Dan Seligman, “Lowering the Bar”, Forbes, Sept. 20) (& updates Oct. 5-7, 2001: federal government drops support for suit; Oct. 25-27, 2002: Third Circuit panel rules 2-1 for SEPTA).
September 15 — “Teach but don’t touch”. “Adults working with children are warned by superiors worried about lawsuits against showing too much affection toward their young charges. ‘Teach but don’t touch,’ a lawyer for the National Education Association told the membership in 1995. ‘If you hug a child, even a child who is hurt or crying, I will break your arms and legs…If kids need help in the bathroom, take an aide with you, or let them go on the floor.’ Trained as if they were preparing to enter the opposing counsel’s meeting room, camp counselors have become ‘less relaxed around children,’ according to one camp consultant, even though youngsters ‘come to camp with more emotional baggage than they did just five years ago.” — from pp. 15-16 of City Journal contributing editor Kay Hymowitz’s newly published book, “Ready or Not: Why Treating Children as Small Adults Endangers Their Future — And Ours” (Free Press). That business about “let them go on the floor” was a joke, we think. And that business about breaking your arms and legs. We think.
September 14 — Blackboard jungle. The town of Ann Arbor, Mich. (population 109,000) is facing a calamitous $30 million in legal liability, a sum amounting to $1,100 for every family of four within its borders. What did its taxpaying citizens do to deserve such a costly chastisement at the hands of the civil law? Did they invade and pillage neighboring Saline, putting 200 homes to the torch? Did they bid defiance to Michigan State on the day of the big game by vandalizing 30,000 cars belonging to MSU fans? No; through their elected representatives, they employed substitute teachers from 1990 through last year on a written understanding that they wouldn’t be entitled to promotion to full-time status. A court ruled that the agreements to waive promotion were invalid, class-action lawyers did their thing, and now the back pay bills are coming due, payable to subs who might have made a career in the Ann Arbor schools had the policy been otherwise: $265,000 and $177,000 for two Ypsilanti residents, $135,000, $128,000, and $104,000 for former substitute teachers who now live in Kansas City, Cincinnati and Nevada, amid a long list of others. Now the town’s suing its former law firm for malpractice, ensuring that yet more wealth will be thrown on the blame-seeking pyre. (Paul Rioux, “School board OKs malpractice suit”, Ann Arbor News/Michigan Live, Sept. 9 (no longer online))(& letter to the editor from lawyer who brought the case).
September 14 — Gunmaker bankruptcies: three, and counting. The first wave of business casualties consists of Southern California makers of inexpensive handguns: Sundance Industries of Valencia has joined Lorcin Engineering of Mira Loma and Davis Industries of Chino in seeking protection from creditors. According to Peter Boyer’s article in the May 17 New Yorker, the cost to the gun industry of defending against the campaign of city lawsuits recently orchestrated by trial lawyers has been projected to reach $1 million a day — that’s just defense costs, aside from any chance of losing, and given this country’s lack of a loser-pays rule it’s money the manufacturers can never expect to recoup no matter what vindication they may obtain in the end. Lawyers for the cities reportedly intend to argue that their claims against the gunmakers — speculative, newly concocted and retroactive though they are — should be given better treatment in bankruptcy proceedings than the ordinary claims of other creditors, on the grounds that they’re meant to advance the “public welfare”, whereas the other creditors’ claims are grounded in the mere obligation of law actually on the books. (Paul M. Barrett, “Lawsuits Trigger Gun Firms’ Bankruptcy Filings”, Wall Street Journal, Sept. 13.)
September 14 — Careful what you tell your lawyer. Through much of the American legal system, the need to assure clients confidentiality in what they tell their lawyers is taken so seriously that large amounts of sharp practice and abuse are tolerated lest it be infringed to even a small degree. But an exception is rapidly growing: if your company is under investigation for environmental offenses, it may no longer be safe to level with your lawyers. According to David Lyons in the Miami Daily Business Review, defense lawyers are increasingly alarmed by a trend in which the federal government’s attorneys, as a condition of agreeing to resolve charges, are demanding that businesses turn over the bulk of their lawyers’ litigation files, including such things as the notes from employee interviews taken during lawyer-led internal investigations. Once workers realize that what they say can be turned over to the authorities, they may start withholding information from the lawyers, in turn making it harder to demonstrate flaws in the government’s case. A big case settled this summer against Royal Caribbean Cruises typifies the new brand of prosecutorial hardball. (Sept. 10 — full story).
September 14 — “Truly egregious” conduct. A unanimous panel of Michigan’s Court of Appeals has thrown out a $15 million malpractice verdict won by flamboyant attorney/radio host Geoffrey Fieger against William Beaumont Hospital in Troy. Not only was the expert witness testimony insufficient to prove the case, the court said, but Mr. Fieger had engaged in misconduct that was “truly egregious — far exceeding permissible bounds” in the proceedings against the hospital and cardiologist Dr. David Forst. Along with “repeatedly and with no basis in fact accus[ing] defendants and their witnesses of engaging in conspiracy, collusion and perjury to cover up their alleged malpractice,” the judges wrote, Mr. Fieger
‘insinuated, outrageously, and with no supporting evidence that Dr. Forst ‘abandoned’ [the patient] to engage in a sexual tryst with a nurse.” (“Appeal reverses malpractice award“, Detroit News, Aug. 24; editorial, Aug. 25). Mr. Fieger called the panel’s ruling a “laughable decision by three [Gov. John] Engler henchmen” and vowed to file misconduct charges against all three judges. (“Briefly”, Detroit News, Aug. 25).
Best known nationally for having defended Dr. Jack Kevorkian at his criminal trials, Mr. Fieger was the unsuccessful Democratic candidate for governor of Michigan in 1998 and as such remains titular head of the Michigan Democratic Party. His earlier disciplinary run-ins have included sanctions for submitting misleading pleadings and for trying to evade random-selection procedures in the assignment of federal judges to his cases. On July 21, a Detroit News editorial criticized as excessive a record $21 million award for another of Mr. Fieger’s clients, who had sued DaimlerChrysler over sexual harassment. In a rebuttal which ran in the News August 11, Mr. Fieger said the paper’s editorialists had told “bald-faced lies” about him based on “total garbage”.
September 13 — Join our new Verdict Rewards program. On September 3 a deadlocked jury declared itself unable to reach a decision in a tax fraud case against eccentric New York millionaire and political gadfly Abe Hirschfeld. Elated, Mr. Hirschfeld proceeded to throw a lunch at which he handed each juror a check for $2,500. Only “one or two” of the ten saw fit to turn down the money, although a couple of the others were said to have agonized very becomingly about whether to cash the checks. Apparently there’s no current law on the books that bans paying off juries after the fact.
It’s become a common occurrence for jurors to be invited as guests to lavish acquittal balls thrown by freed defendants, and boxing promoter Don King raised the ante after his fraud acquittal when he treated federal jurors to a Bahamas vacation. Outright cash gifts might seem a logical extension. The extra twist in Hirschfeld’s case is that he’s a “serial defendant”: his trial on charges of hiring a hit man to kill his business partner is set to start today, and word could easily spread among the next set of jurors that this is a man from whom money can be expected. Hirschfeld himself says he’d have given jurors the checks even if they’d convicted him. (Uh-huh.) (DeWayne Wickham, Gannett; Clyde Haberman, “Jury Booty: It’s Lucrative and Legal“, New York Times (free, but requires registration), Sept. 10)
September 13 — New Overlawyered.com page: Fear of flirting. Tenth and latest in our series of topical links-and-commentary pages takes a reform-oriented look at sexual harassment law.
September 13 — “Judges rule on cases in their portfolios”. In 1997 at least eight federal appeals judges sat on cases in which they, their spouses or trusts held stock in one of the parties, in violation of ethics rules, according to a report from the left-wing Community Rights Counsel, an anti-property-rights group. Most of the judges blame inattention to spouses’ or trusts’ stock dealings for the errors. (Joe Stephens, Washington Post, Sept. 13 — link now dead).
September 13 — “You got to get you a little money”. In this now-classic episode, ABC’s “20/20” staged a fake accident on the streets of New Orleans and called the cops. Within minutes street hustlers who monitor police radios were on the scene handing out lawyers’ business cards. One arrived in a gold Jaguar. “Might as well say you hurt your back and your neck. You know what I’m saying? ‘Whiplash! Whiplash!’ Guaranteed. About $4,000 to $6,000.” The “passengers” kept insisting they weren’t hurt, but the runners weren’t easily discouraged: “You got to get a little money. A couple thousand of dollars. It ain’t going to cost you nothing. It ain’t going to cost him nothing.”
There’s money in driving a tow truck, too, if you know how to work the game. “And you go in the attorney’s office itself, and he will pay you cash money.” How much? “Between $600 and $700 per person.” Gordon Stewart of the Insurance Information Institute says fraudulent crash claims add up to a $25 billion industry: “if you had this business, you’d be doing pretty well. You’d be in the top of the Fortune 500”. Also caught on camera: a New York chiropractor coaching an accident victim on how to fake pain symptoms: “You’ll get the Oscar here, babes, don’t worry.” He billed for 94 visits, though the patient reported only seven.
Then there’s the growing problem of deliberately caused collisions with innocent drivers aimed at setting up liability claims. One convicted Texas operator said he targeted elderly drivers as victims because, being less alert, they weren’t as good at avoiding the accident, and added that fraud rings he set up for Lone Star State lawyers and doctors had deliberately caused at least 300 accidents in two years. “We have a law office that makes $20 million in two years, you know? Net …” Most sinister case of all: a scam artist in Springfield, Mass. engineers a traffic accident that goes wrong and kills an innocent driver: he later falsely claims to have held the dying man in his arms, so as to support his own claim for post-traumatic stress disorder. (rebroadcast Aug. 25 — full transcript)
September 11-12 — Knock him over with a feather. Indian tribes, in negotiations with the state of California over lucrative slot machine concessions, ceremonially award Gov. Gray Davis an eagle feather as a token of their personal esteem. Then come the legal complications: you or I or even the governor of a big state could be sent to prison under federal environmental laws for knowingly possessing even a single feather of a protected bird. No showing is needed that any creature was improperly molested in its gathering: naturally moulted quills found in your back yard can also get you in serious trouble, as can feathers from birds that have died from natural causes or were raised in captivity. In publicized cases, law enforcers have gone after persons arriving from abroad with antique stuffed birds and a Michigan artist who used old stocks of feathers as part of her collages. Davis’s office hastened to put out word that the dangerous object very likely belonged to the state of California itself (which would be lawful) rather than to the governor personally. (Dan Morain, “An Eagle Feather — and Controversy — for Governor”, Los Angeles Times, Sept. 9; Fox News (link now dead)).
Both Davis and his Indian benefactors are likely to come out in better shape than did James W. Thomas, a 38-year-old resident of Des Moines, Iowa, whom a federal judge sentenced in 1996 to six months home confinement and three years’ probation after he pleaded guilty to one felony count of violation of the Migratory Bird Treaty Act. Thomas had sold an eagle feather bonnet and several other eagle-derived knickknacks to undercover Fish and Wildlife Service agents. According to the summer 1996 issue of Federal Wildlife Officer, “Thomas operated a business in downtown Des Moines known as the Feather Emporium, where he sold imitation eagle feathers and Native American crafts.”
September 11-12 — “Cook County law bills a secret”. Two lawyers with extensive political connections have charged the Cook County sheriff’s office $3.7 million for representation over the last two years, which included three high-profile cases. For example, William R. Quinlan, a former judge and chief city attorney over three mayoralties, charged $810,000 for 16 months of work on one case at a stated rate of $180 an hour plus undetermined expenses, suggesting either that his expenses were very high or his work weeks exceedingly long. The true explanation may remain a mystery because neither taxpayers nor even the members of the official Cook County Board of Commissioners, which was on the hook to pay the expenditures, have been permitted to see the details of what the lawyers billed for, including such basic information as the number of hours they put in. Instead, the two attorneys arranged for judges to seal the billing records, locking them away in a vault — for the sake of protecting sensitive information, they say. (Tim Novak, Chicago Sun-Times, Sept. 7, link now dead)
September 11-12 — Overlawyered classrooms. A survey of 523 school principals, done with the assistance of the American Tort Reform Association, finds nearly two-thirds say they see more lawsuits than ten years ago. “Whenever we plan for anything in a school today, our first consideration is how to avoid a lawsuit,” said executive director Vincent Ferrandino of the National Association of Elementary School Principals. Supreme Court decisions on harassment and disabled rights add to existing exposures over employment, playing-field injuries and civil liberties violations. “We tell our principals to err on the side of safety, but they say we have lawyers looking over our shoulders ready to pounce on us,” said executive director Gerald Tirozzi of the National Association of Secondary School Principals. Threats of litigation are disruptive and often lead to payouts of several thousand dollars even if no suit is filed, another official says. An expert on the other side says school litigation isn’t rising in volume and calls the school administrators “paranoid”. (Anjetta Mcqueen, “Liabilities, Threats Burden Schools,” AP/Washington Post, CNN, links now dead)
September 10 — Too many games at GM? General Motors’ gas tank designs may be solidly defensible, but what about its litigation tactics? According to an Atlanta judge, certain memos in the automaker’s possession resembled Rose Law Firm billing records: first they existed, then they ceased to exist when a court asked for them, then they went back to existing again. Meanwhile, company witness Edward Ivey was developing a case of convenient memory syndrome, forgetting even basic facts about the circumstances in which he wrote a supposedly damning memo but suddenly able to remember bits of evidence that helped the company’s case. Moreover, writes Judge Gino Brogdon, GM’s motions and arguments in several lawsuits proceeded to describe Ivey as having affirmed various assertions about the distribution and purposes of the memo when all he’d said was that he couldn’t remember the opposite. Who did these folks think they were working for — the Clinton White House? (judge’s opinion; Bill Rankin, Atlanta Constitution, Sept. 9; Trisha Renaud, Fulton County Daily Report; AP/Washington Post Sept. 9 morning and evening stories, links now dead; DowJones.com.) Lawyers for GM said they were “disappointed” by the judge’s ruling, called it inconsistent with rulings by other courts, and said the company intends to pursue every means of appeal, but as of this morning GM had not yet posted a press release at its website. (Overlawyered.com coverage of this summer’s Chevy Malibu trial: July 10, August 27; page on auto safety litigation).
A reason to approach the new ruling with caution is that at least one of its crucial assertions of fact appears flatly incorrect, concerning the now-famed “Ivey memo” which sought to guesstimate the aggregate costs of post-crash fires in GM-made automobiles. In the third paragraph of his opinion, Judge Brogdon describes the memo as having “concluded that GM could prevent such fires and the resulting fatalities by spending a mere $2.40 per vehicle in safety improvements.” But even a cursory reading of the two-page Ivey memo itself, which the magazine Mother Jones has posted at its website, shows that it did nothing of the sort. While (wrongheadedly or not) attempting to quantify the benefits if GM could someday find a way to prevent all post-crash fires, the memo describes it as “impossible” to do that until some way is found to power cars without flammable fuel (p.2), and reveals nothing at all about whether Ivey or anyone else at the company knew of any design changes that they believed could reduce the incidence of fires even marginally — let alone whether such changes had been costed out at $2.40 or any other number.
Some light is indeed shed on these latter questions by a longer memo, prepared by GM lawyers in the course of litigation, which reconstructed discussions among the company’s fuel-system engineers at the time, and which is also posted (apparently in excerpted form) at the Mother Jones site. The memo depicts the engineers (pp. 3, 4 in Mother Jones’s pagination) as concerned about the safety tradeoffs of alternative gas tank placements, and as viewing forward placement of the tank as a decidedly mixed bag on safety grounds since, while improving protection from rear-end collisions, it would increase the likelihood that spilled fuel would enter the passenger compartment during other types of accidents. The memo includes no indication as to whether one placement would have been more or less expensive to manufacture than the other. Trial lawyers keep hammering away at the charge that GM refrained from instituting life-saving improvements because it had costed them out at $2.40 a car and decided not to spend the money; but if there is any evidence to that effect, it does not appear in these supposed smoking-gun documents that they have proffered to the public.
September 10 — State of legal ethics. Whether by coincidence or not (see above item) the August 2 National Law Journal runs a big column in its section aimed at practicing lawyers under the title: “Discovery: What’s wrong with coaching?” Jerold S. Solovy and Robert L. Byman, fellows of the American College of Trial Lawyers and partners at the respected Chicago firm of Jenner & Block, argue that when it comes to witness preparation, [w]e need to take the pejorative connotation out of ‘coaching’.” They hasten to point out that they’re not advocating changing witnesses’ stories. But they view it as quite okay to suggest language to friendly witnesses that is, well, more effective for the purpose at hand than the language they had come up with themselves, so long as it’s not false. They also declare that while there may be “tactical” reasons to the contrary, they see no ethical problem in trying to turn a witness who’s hesitant and diffident about his narrative into one who radiates confidence — even though the “demeanor evidence” conveyed by hesitance and diffidence may be of considerable truth value to a court. And while acknowledging that many forms of coaching clearly go over the ethical line, Solovy and Byman approvingly quote Holmes’s comment [in Superior Oil, 280 U.S. 390, 395-96 (1930)] that “[t]he very meaning of a line in the law is that you intentionally may go as close to it as you can” — seeming to confound the legal question of what you should be able to escape punishment for doing with the ethical question of how you should in fact behave.
September 10 — Hope for the Philadelphia- abducted. Judge Pamela Pryor Dembe, of the court of common pleas in the City of Brotherly Love, has thrown out on forum non conveniens grounds a lawsuit filed by Connie Endre against the Trump Marina casino in Atlantic City over injuries Ms. Endre said she sustained when she tripped over a vacuum cleaner cord at the casino hotel. In this case the accident had taken place in New Jersey, which was also the state where Ms. Endre lived and worked, where she had gotten her medical treatment, where the defendant casino was headquartered, and where the likely witnesses were located. So how did the suit come to be filed in Philadelphia, instead of New Jersey? One explanation might be that the law firm Ms. Endre had signed with was based in Philly; another might have been the reputation for generosity of that city’s juries. “Everyone loves a Philadelphia jury,” agrees plaintiff’s attorney Elizabeth Gray of Rosenbaum & Associates.
“These cases are fairly routinely filed in Philadelphia and difficult to get out of Philadelphia despite the lack of ties to Philadelphia,” defense attorney Robert Lawler of Wilbraham Lawler & Buba told Robert Sharp of the city’s Legal Intelligencer. (See also Sept. 1 commentary, on suits filed by employees of the New York-New Jersey PATH train system.) “This case, to my mind, reflects a carefully thought-out decision [by the judge] that there were no ties to Philadelphia other than the plaintiff’s law firm being in Philadelphia.” Carefully thought out, yes, but sadly rare: “Attorneys for both the defendant and plaintiff called the outcome unusual.” Isn’t it time it was made less unusual? (Sept. 3 — full story)
September 9 — Giuliani confinement ends. A jury that happened to include the mayor of New York City took only 50 minutes to reject Oliver Johnson’s claim that negligently over-hot shower water had dealt him a highly personal injury. Plaintiff’s lawyer Joe Kellner blamed a young lawyer in his firm for letting Hizzoner onto the case rather than exercising a peremptory challenge. But Giuliani, who served as foreman, said he let the other jurors go first in stating their opinion, and by the time the case came around to him it had already been decided. (Post, Daily News, and links now dead: AP/Newsday, New York Observer).
September 9 — A case of meta-False Claims. Sharp practices in Medicare billing have been a well-documented scandal, so it was easy to assume the U.S. Department of Justice knew what it was doing in 1997 when it filed charges against roughly 145 hospitals for alleged overbilling; its crackdown invoked the False Claims Act, a law that levies stiff penalties against those who submit fraudulent bills to the government. But then prosecutors took a closer look and concluded that the hospitals had not violated the law after all in a fair number of the cases, which were accordingly dropped, according to a General Accounting Office report issued last month. Unfortunately for those defendants, there doesn’t seem to be much of a remedy for having false claims made against you under a law called the False Claims Act. (Peter Aronson, “Claims by DOJ Lacked Proof”, National Law Journal, Aug. 19 — full story) (see Jan. 18 commentary)
September 9 — “Complaints against lawyers up again”. Grievances against New York attorneys hit a record 13,528 statewide in 1998, up 58 percent in eight years. Public and private sanctions applied against them were up by similar margins of 56 and 52 percent. Reassuring fact that isn’t nearly so reassuring when you think about it: much of the increase reflects simply the persistent rise in lawyers’ numbers, rather than any change in their standard of practice. (Gary Spencer, New York Law Journal, Sept. 8).
September 9 — “Bringing art to court”. The movie Natural Born Killers “is the target of an increasingly notorious lawsuit” claiming it inspired a real-life shooting. The judge agreed to let the suit proceed, First Amendment or no, and already another Hollywood-did-it suit is moving forward, this time blaming The Basketball Diaries for the Paducah school shootings (see July 22 commentary). The itch to control what’s shown on screen hasn’t changed much since the days of the Hays Office and its Production Code, writes Jesse Walker, “[b]ut this is uncharted territory. As bad as the old censorship was, it did not require artists and entertainers to measure in advance every possible effect their work could have on every possible person in their audience.” (Reason, August/September). Salon‘s David Horowitz calls the political-legal onslaught against the entertainment industry “a consciously designed parallel to the assault on tobacco and gun manufacturers” and deplores the “authoritarian vision” of the Weekly Standard‘s recent pro-censorship cover article: “With conservatives like these, who needs liberals?” (Aug. 30).
September 8 — Wages of wrongdoing. According to news reports in June, sentencing is set for this Friday, Sept. 10, in the case of two prominent Staten Island attorneys convicted on multiple counts of paying insurance adjusters more than $100,000 to give them favorable terms on some $2.5 million in settlements, in disloyalty to their companies. After an eight-week trial, a federal jury deliberated for three and a half days before finding the firm of Grae, Rybicki and its partners Frederic Grae and Thomas Rybicki guilty on all 23 counts of the indictment.
The case began with a 1995 probe by the Manhattan District Attorney’s office that led to the indictments of 21 attorneys along with several middlemen who served as conduits for bribes. Along with wiretap recordings, prosecutors obtained actual ledgers used by middlemen in which they recorded their bribe activities. Many guilty pleas and convictions have resulted, with some cases still pending. Companies whose employees participated in the scheme, without knowledge of higher management according to prosecutors, included Aetna, Geico, American International Group (AIG), and Commercial Union.
A lawyer for Rybicki had argued that his client and Grae were unaware that money they gave middlemen was being used to bribe adjusters, instead saying that the go-betweens were being paid “for their skill and expertise in evaluating cases and negotiating settlements, especially in multi-defendant cases where several carriers were involved.” He also said that the transactions had not defrauded insurance companies because the cases had settled for fair value.
Press coverage has described Grae & Rybicki as the largest law firm on Staten Island; Frederic Grae is a former president of the Richmond County Bar Association and Thomas Rybicki is a former president of the Staten Island Trial Lawyers Association. (New York Law Journal, June 17) (New York Daily News, June 18).
September 8 — Billabong update: surfer clothing gets a reprieve. Officials at Winneconne High School in Wisconsin have changed their mind and decided to lift their ban on clothing with the brand name “Billabong” (see “Annals of Zero Tolerance”, Sept. 2, below). The word is of Australian aboriginal origin and means lagoon or backwater, but a principal contended it was too suggestive of “bong”, the word for a marijuana pipe (Milwaukee Journal-Sentinel, Sept. 6). In the Chicago Tribune, columnist Steve Chapman decries the way school-shooting hysteria has led administrators to ban bookpacks and trench coats and treat the students compelled to attend their institutions as “dangerous, incorrigible, undeserving of respect” and without privacy rights. “What’s the difference between school and prison? At school, you don’t get cable TV.” (Sept. 2 —full column)
September 8 — Marbled Murrelet v. Babbitt: heads I win, tails let’s call it even. Environmentalist litigators on the West Coast circle the wagons to defend a cherished principle: they get to extract fee awards from their opponents when they win, but their opponents don’t get to extract fee awards from them when the case falls out the other way. It may be unfair as all get-out, but to them it’s precious, and the Ninth Circuit has just revamped its attorneys’ fee jurisprudence to make the fee entitlements even more asymmetrical than before (California Law Week, Aug. 30 — full story)
September 7 — How to burnish your community’s image. The Detroit suburb of Melvindale has sued WKBD-TV and anchor Amyre Makupson over news coverage which may have associated the town in viewers’ minds with the idea of cockroaches. The station’s coverage, over four days last month, focused on neighbors’ alarm about a roach-ridden local dwelling and included file footage from an earlier infestation incident, all of which, per allegations quoted in the September 2 Detroit Free Press, “reduced the city’s marketability and harmed the property, credit and public goodwill of the community”. (The station denies its coverage was unfair or inaccurate.) How better to improve your town’s image than by filing a legal action guaranteed to generate many more news stories and a stack of permanent legal documents linking the words “Melvindale” and “cockroach”? For the record, when your editor briefly visited the unpretentious downriver community last year, he does not remember observing even a single member of the family Blattidae. (“TV reports on roaches spur lawsuit” — full story).
September 7 — Labor Day: “Overworked America?” Your editor was one of the panelists on yesterday’s “Lehrer News Hour” discussion on this subject, which PBS has now posted in transcript and Real Audio form at its website. Not much on legal issues (although the “family-friendly workplace” theme came up) but he did manage to slip in a few reasons why hand-wringing on the subject of long workdays may be overdone, namely that: 1) working conditions have improved immeasurably since the now-romanticized 1950s and very few of us would change places with our fathers’ jobs; 2) most people who work very long hours today do so as a choice and because they’re ambitious in some way; 3) one of the perennially undercovered Labor Day stories is “how little the conditions of average workers seem to have been changed by the much-heralded decline of unionism” (he ducked after that one).
September 7 — The shame of the ACLU. There are many sad aspects to the California Supreme Court’s decision last month in Aguilar v. Avis, upholding an injunction in a workplace harassment case against an employee’s future use of racial epithets for any reason and under any circumstances. It’s too bad that by a margin of only one vote — over heated dissents, to be sure — the high court managed to pretend there’s no real conflict between workplace harassment law and the First Amendment right of free speech. It’s too bad it was allowed to duck the problem of the injunction’s overbreadth, often deemed a constitutionally fatal flaw when it comes to injunctions restraining speech. And it’s too bad the American Civil Liberties Union threw away any remaining reputation it may have had for putting civil liberties first, by intervening on the side opposed to free speech — because it considers antibias norms more important. (“Court Upholds Hate Speech Gag”, San Francisco Recorder, Aug. 3; columnist Vin Suprynowicz, Las Vegas Review-Journal, Aug. 9).
September 7 — 25,000 pages served on Overlawyered.com. Pretty good for just over two months into the project, we think. Thanks for your support!
September 7 — “Addictive tobacco money”. If the state attorneys general that sued cigarette companies were to be believed when they said they were just trying to reclaim money needlessly expended by taxpayers, you’d expect their states to apply the settlement windfall to lowering taxes, right? How many of the fifty states have actually done that? (If we’re lucky, the number might get up to three.) “From the very start, the settlement was a swindle,” editorializes Investor’s Business Daily. But “[w]hat do you expect from government officials who are addicted to other people’s money?” (August 27, link now dead).
September 7 — Click here to sue! A website for disgruntled former AOL volunteers (“community leaders”) makes it easy to join a class action suit accusing the giant Internet service provider of paying them no more than they bargained for (i.e., nothing at all) when they carried out volunteer administrative tasks in areas of interest to them. “[W]e suggest you NOT advise AOL of your intent or involvement with the lawsuit until AFTER your Consent has been duly filed in the Court…It will not cost you a single penny to join the lawsuit.” The World Wide Web would certainly be a different place if all volunteer effort that went toward website creation and maintenance had to be redefined as an employment relation subject to withholding and the Fair Labor Standards Act. Most likely, it would still be a mere gleam in the eye of Al Gore.
September 7 — Oops! Please don’t read above item. We were about to announce the imminent unveiling of Overlawyered.com‘s brand-new Discussion Boards, which will give visitors a chance to comment on the site’s contents, react to current news stories, share outrageous (but documentable!) tales of litigation, and do the other sorts of fun/serious stuff associated with bulletin board systems. As part of the announcement, we were going to call for volunteers to moderate particular forums, propose threads for discussion, help nip inappropriate postings in the bud, and do the other sorts of volunteer tasks that make the difference between a chaotic bulletin board and one that people enjoy using. Then we learned about the AOL situation (please don’t read above item!) and realized someone could come after us for not paying these volunteers wages and time-and-a-half, giving them paid vacation, rectifying the ergonomic problems they run into from excessive keying, keeping them from flirting with each other, and so forth. Now we’re biting our nails and wondering whether to call the whole thing off, or ask volunteers to sign forms in triplicate saying they’re definitely not employees of this site, not a labor-management nexus at all, no employment relationship nohow. If any readers undeterred by all this want to volunteer anyway to help with the bulletin boards, give us an email.
September 4-6 — Okay, we admit it: we admire these lawyers. More than forty Seattle attorneys, led by the criminal defense bar under the rubric of the Innocence Project Northwest, mobilize to represent more than a dozen of the railroaded defendants convicted of child-abuse crimes in the Wenatchee, Wash. hysteria of the mid-1990s. In all, 43 local residents were accused and 28 convicted, many given sentences of more than twenty years, on evidence the flimsiness of which came to national notice through the efforts of the Wall Street Journal‘s Dorothy Rabinowitz and others. In one story so dramatic it could hardly be bettered by a Hollywood scriptwriter, lawyers raced this February to beat the deadline for contesting the conviction of Henry Cunningham, who’d been given a 47-year sentence. They made it to the courthouse with only 18 minutes to spare before a shroud of finality descended on Cunningham’s case, prosecutors declined to defend his conviction, and today he’s a free man. (Elizabeth Amon, “A White Knight’s Tale”, National Law Journal, August 20, 1999 — full story). The Seattle Post-Intelligencer‘s 1998 roundup on the Wenatchee debacle was entitled “The Power To Harm“.
September 4-6 — Bite marks in Big Apple. New York City paid out a record $381 million in lawsuit verdicts and settlements last year, an 18 percent leap from fiscal 1997. That’s about $200 annually for every Gotham family-of-four. The great majority (83 percent) of the total was paid out on personal-injury claims, the rest going for property damage and contract claims. The figures don’t include the Transit Authority or other off-budget agencies. (New York Post editorial — Sept. 2)
September 4-6 — Business-interruption claim of the week. A South Carolina judge has rejected Kenneth Curtis’s claim that the state owes him money for disrupting his business when it passed a law banning the sale of urine for the sake of beating drug tests. Curtis says the law has cut into his three-year-old enterprise of selling his urine over the Internet ($69 plus shipping for five ounces). His argument that the law is unconstitutional is still pending, but a lawyer for the state says that it is protected by official immunity from money claims on the issue (AP/Spartanburg, S.C. Herald-Journal, Sept. 3)
September 4-6 — Rude questions to ask your doctor. Why, exactly, has the organized medical profession elected to ally itself with America’s trial lawyers to make it easier to sue health plans? Do they really think in the long run giving the lawyers a new and deeper pocket to go after is going to relieve the negligence-suit pressure on them? The National Association of Manufacturers takes a dim view of the docs’ apparent feed-the-wolf strategy, especially since its employer-members, as operators of health plans, are prime candidates to serve as Purina Wolf Chow. NAM points out that physician-Rep. Tom Coburn (R-OK) recently decried a measure that would make it easier to find out if a doctor has been sued, protesting, “Ninety percent of suits against doctors are without merit.” (Wall Street Journal, Aug. 24.) Yet this is the same bunch of litigators Coburn wants to turn loose to sue health plans. (Workplace Watch newsletter, Sept. 1999).
September 3 — New survey of state-court verdicts. There’s plenty of genuine news to be gleaned from the release of a new Bureau of Justice Statistics study on tort, contract and real property cases decided in state court in the nation’s largest counties in 1996 (study available here). For example, the new numbers should permanently lay to rest the assertion, often heard from trial-lawyer advocates, that the real source of high litigation rates is businesses suing over contract disputes (“Businesses file 10 times as many lawsuits as injured consumers”, claims the Washington State Trial Lawyers Association; “Business cases account for 47 percent of all punitive damage awards,” chimes in the Association of Trial Lawyers of America). In fact, the BJS study found that businesses made up a scant 7.8 percent of plaintiffs at jury trials and 16.3 percent at trials generally, with individuals the plaintiffs in 91.1 percent and 81.5 percent respectively; and that the overwhelming majority of punitive damage payouts came in tort, employment and other cases typically filed by individuals.
Unfortunately, most of the press has followed the Bureau of Justice Statistics’s own press release in highlighting two findings of the study which 1) aren’t very newsy or surprising and 2) are readily misinterpreted by newcomers to the field. The first of these is that plaintiffs won about half of the cases that went to trial; the second is that plaintiffs won a slightly higher percentage of cases tried before a judge alone (“bench trials”) than they did of cases tried to a jury, though damages were lower in the bench-trial cases. The higher rate of plaintiff success in judge-tried cases strikes some reporters as ironic and counterintuitive since judges are said to be more skeptical of plaintiffs than juries are, and here they are giving them more victories — that sure must refute the conventional wisdom, no?
The reason a roughly 50-50 win rate at trial isn’t very newsworthy is that it’s an almost pure artifact of the process by which only a tiny percentage of all lawsuits wind up reaching trial, the rest being settled or withdrawn before that point. As UCLA’s Benjamin Klein and Yale’s George Priest (among others) have demonstrated, trial win rates will tend to converge on a middling figure because clear-winner and clear-loser cases are more likely to settle beforehand, leaving for trial a residue of cases whose outcome informed lawyers have trouble guessing. That’s why win rates so often come out around 50 percent at many different times and places around the world, including both highly litigious environments where lots of money gets redistributed and highly unlitigious ones where the preconditions for getting into court are quite demanding. Nothing at all can be inferred from such numbers (standing alone) about whether a litigation system is pro-plaintiff or pro-defendant, headed in a liberal or conservative direction. If one type of case begins winning more often before juries, more marginal examples of that same kind of case will be emboldened to take their chances where they would not before, and many of these former long-shots will lose, pushing the win rate back down.
And what of the higher rate of plaintiff success at bench trials? Cases that wind up being tried before judges are far from a random cross-section of cases tried in general, because in this country most money claims can be tried to a judge alone only by consent of the parties, and individual tort plaintiffs are seldom willing to waive their jury rights (and when they do, it’s usually because they recognize that special circumstances make them likely to do better going with the judge). The practical wisdom among many attorneys is that it can make sense for a plaintiff to agree to a bench trial when the likelihood of proving liability is strong but there is no great likelihood that a sympathy factor will drive up damages. The study’s results — slightly higher win rates but lower damages in those cases where plaintiffs have consented to bench trial — are entirely consistent with that wisdom (Washington Post, Sept. 2; link now dead.)
September 3 — EEOC encourages anonymous harassment complaints. “Concerned that employees may be reluctant to report complaints, the EEOC guidance [issued this June] advises companies to offer a phone line through which individuals can ask questions or discuss concerns about harassment anonymously. Yet management attorneys have strong reservations about the idea. Employers are obligated to investigate all harassment complaints, they say, but this is tougher to do when they come in anonymously over the phone.” Thus reports Lisa Fried in the Aug. 19 New York Law Journal. Read that again carefully, and you almost have to conclude that what’s holding up the bright idea of setting up snitchlines to facilitate anonymous denunciation in American workplaces is not that anyone’s worried about what happens to the targets of these complaints, who will find themselves the subject of suspicion and internal investigation without even knowing who their accuser is; no, it’s that following up on faceless complaints of harassment is tougher on the investigators. (full story)
September 3 — My lawyer is an impostor. Georgia officials scratch their heads at the frequency with which bold residents of their state simply hang out a shingle and start practicing as lawyers, though innocent of either law school or the bar exam. W. James Thompson pulled off such an imposture for 13 years. Andre D. Taylor put together a marketing package and mission statement for his bogus law firm, and showed up as a role model at a high school’s Career Day. The more careful of the ersatz avocats stick to areas like filing demand letters which allow them to avoid going to court or dealing with real lawyers. Unsettling aspect: “many clients of fake lawyers are perfectly happy. Indeed, some of these people have built their practices on client referrals.” “We really liked him,” said one client of Thompson, who drove Jaguars and a Mercedes-Benz. (Ann Woolner, Fulton County Daily Record, Aug. 2 — full story).
September 2 — Charity dollars support trial lawyers’ gun jihad. If you amassed a fortune in business and decided to devote it to charitable pursuits, would you want it spent to help America’s trial lawyers expand product-liability law even further? The Capital Research Center‘s August 1999 Foundation Watch reveals that big philanthropies are helping bankroll the litigation campaign that’s trying to take down the gun industry. The list of foundations includes many well-known names: George Gund, Joyce, Charles Stewart Mott, Richard & Rhoda Goldman Fund, Eugene & Agnes Meyer Foundation, George Soros’s Open Society Institute, and others. Also getting into the act, as members of the Coalition to Stop Gun Violence and similar groups, are such Main Street institutions as the YWCA [not, as previously reported, its male counterpart, the YMCA; this was a mistake of the Coalition itself which passed into later reporting], Presbyterian Church USA and National Urban League. Of course many of these big entities, like many of the lawyers and municipalities they’re assisting, have far more money in the bank than the family-owned gunmakers whose legal torment they’re helping to finance, yet neither they nor anyone else will have to pay a nickel to make whole the vindicated defendants if their newly concocted legal theories misfire in court. Don’t you sleep easier than you would if you’d gone into a career in philanthropy? (full report; sidebars one, two).
September 2 — Tainted cycle. Litigation may be winding down over the 1993 outbreak in the Milwaukee water supply of Cryptosporidium, a parasitic microbe found in human waste. In 1994 a trial court agreed to certify a class of some 400,000 persons believed to have gotten sick, a sizable proportion of the local population, exposing the city to potentially huge damages even though most of the illnesses had been transitory: “Multiply anything times 400,000 and you have a lot of money,” said Linda Hansen, attorney for the city. Hansen explained that “if the city ended up paying, the money would make a circular trip from the taxpayers and back,” to quote a reporter’s paraphrase. Taxpayers pay the water utility’s bills, and “since it is some of those same taxpayers who are suing, they would simply be getting their own money back, less the legal fees.” Sparing them that fate, the courts later decertified the class. Individual suits were allowed to proceed, but the pending case involves about 200 plaintiffs as opposed to 400,000. (Milwaukee Journal-Sentinel, August 29 — full story)
September 2 — Annals of zero tolerance. Officials at Winneconne High School in Wisconsin have banned t-shirts and other clothing with the “Billabong” brand name because the name is too suggestive of “bong”, the term for a marijuana pipe. An Australian aborigine word meaning lagoon, “Billabong” is the name of a company that originally made surfboards and later branched into surf clothing. “I realize Billabong is a surfing company,” said principal Ed Dombrowski. “If we were in California or Florida where they do a lot of surfing, I would understand. But we don’t surf here so where do we draw the line?” Where, indeed? Adam Szadkowski, who was ordered to go to the restroom and turn his shirt inside out to conceal the offending word, found the rule “ridiculous”: “Are they going to ban us from wearing a shirt that says ‘potato’ just because it has the word ‘pot’ in it?” (Milwaukee Journal-Sentinel, Sept. 1 — full story)(see update, Sept. 8).
September 1 — Alabama story goes national. Arianna Huffington is the first national columnist to tackle the story of last month’s indictment of a prominent Alabama trial lawyer for allegedly orchestrating false charges of rape and assault against a tort-reforming Lieutenant Governor candidate last fall (see August 26 commentary). Huffington says the rape story was “blast-faxed” to the Alabama media “one week before a critical fund-raising reporting deadline” and that Republican Steve Windom’s campaign went into a tailspin as he was forced to move into full-time damage control and protect his horrified family from the media glare. In an interview, Windom tells Huffington, “It would have been impossible to disprove the charges in time for the election if it were not for a whistleblower — a trial lawyer who gave us the plot, chapter and verse.” (August 30; full column).
On August 20 the Associated Press reported that the former director of the Alabama Trial Lawyers Association, Don Gilbert, and the group’s former spokesman, Mike Martin, were granted immunity in the probe. Lawyers for the two men stressed that no wrongdoing on their part should be inferred, while Ivey law partner Barry Ragsdale scoffed that “Tommy Chapman [the prosecutor] was giving out immunity agreements like mints at a party”. AP also said that according to the indictment, Ivey was charged with paying accuser Melissa Myers $ 2,700 in connection with her role. A press release from the U.S. Chamber of Commerce describes Ivey as one of the state’s most active lawyers in filing class actions. Update: a jury in June 2000 acquitted Chappell, acquitted Ivey of the felony bribery charge, and convicted Ivey of the two misdemeanor counts of witness tampering and criminal defamation; appeal planned (see Aug. 31, 2000). Further update: in July 2001 the Alabama Supreme Court reversed these convictions and ordered Ivey acquitted of the charges (see July 7, 2001).
September 1 — Time to overhaul jury selection. Yale law professor Peter Schuck gets called for jury duty and is dismayed at how lawyers are allowed to probe and challenge jurors for “biases” that consist merely of healthy skepticism, at the removal of prospective jurors for being too well-informed, and at the endless squandering of all sides’ time in the fighting over who should be empaneled. “In truth, good lawyers use voir dire not to eliminate bias but to create it, by favorably predisposing jurors to their case before any evidence is presented.” (P.S. He doesn’t get on the panel.) (National Law Journal, Sept. 6 — no longer online). Overlawyered.com‘s editor took a look at jury selection issues some time back and came to much the same conclusions.
September 1 — “Block PATH to lawsuits”. Hard-hitting editorial in Aug. 30 New York Daily News on the litigation woes of the troubled PATH train system, which links New Jersey commuters to New York City. Unlike city subway systems, which are covered by workers’ comp laws, PATH is officially a railroad and thus falls under the sue-’till-you’re-blue Federal Employer’s Liability Act (FELA). In 1908, when FELA was passed, one in eight railroad workers was injured on the job. But PATH’s 1,100 employees have filed 1,086 pending injury claims, approximately one apiece. “Is railroading more dangerous now than then? Hardly. PATH employees have simply gotten good at milking the system.”
If that sounds like too harsh an judgment, the News backs it up with stories galore. PATH employee Anthony Courtney had already filed two injury claims when he climbed a tree in his yard to saw off a branch that was interfering with his TV reception, fell and hurt his foot. Job-related, he insisted, because the earlier injuries had interfered with his grip. Another worker sued for psychological stress after seeing a rat in a tunnel under the Hudson. 325-lb. dispatcher John Myrlak sued after his chair cracked and gave way underneath him, and a jury voted him $1.5 million, saying he should have been given a bigger chair. PATH eventually won all these cases — Myrlak’s award was thrown out after eight years of legal wrangling — but the defense costs help bring PATH’s cumulative annual claims payout to $6 million, or about $5,500 per current employee. Curious fact: most of the claims against the rail line are filed not by lawyers in the local NY/NJ area but by four law firms in Philadelphia, far from PATH’s operations, apparently because Philly lawyers are the ones who know how to work the FELA levers. (full editorial; scheduled to remain online until Sept. 4).
September 30 — Power attracts power. With billions flowing into its coffers and its new semiofficial status as a fourth branch of government, the entrepreneurial plaintiff’s bar is fast becoming a magnet for celebrity litigators. This morning’s papers announce that Johnnie Cochran Jr., best known for his criminal defense work on the O.J. Simpson case, is moving to New York where he’ll merge his practice with that of one of Gotham’s largest plaintiff firms, Schneider, Kleinick, Weitz, Damashek & Shoot. Meanwhile, attorney David Boies, famed for representing the U.S. Justice Department in its antitrust case against Microsoft, is teaming up with a prominent Washington, D.C. plaintiff’s firm, Cohen, Milstein, Hausfeld & Toll, to prepare a class-action assault against managed care. Cohen, Milstein is known for, among many other cases, class action suits against German companies over World War II claims and against Texaco over allegations of racial discrimination.
In truth, neither move is an especially surprising or radical departure. Cochran’s Los Angeles legal practice has long leaned heavily on injury suits, and both the Schneider firm and his have made a particular specialty of police-misconduct suits, the lucrative cousin of criminal defense law (the name of the game being in both instances to get people mad at the police, but with a lot bigger paydays to be had working the civil side). Boies has also taken part in class-action plaintiff’s work in the past, and one of the underpublicized aspects of the Microsoft war is the likelihood that a government victory in the suit will be followed by a barrage of copycat/piggyback suits by private class action lawyers (though presumably not by Boies himself), the heavy lifting on the development of legal theories having been done at taxpayer expense thanks to the U.S. Department of Justice. (Laurie McGinley and Milo Geyelin, “Attorneys Prepare Suits Against HMOs,” Wall Street Journal, Sept. 30; Katherine E. Finkelstein, “Johnnie Cochran Quits TV Job to Join Manhattan Law Firm,” New York Times, Sept. 30)
September 30 — Impending assault on HMOs. More details in today’s news-side Wall Street Journal on how trial lawyer troops are massing on the border for an all-out attack on managed care. Among those involved is Pascagoula, Mississippi’s Richard Scruggs, who is reaping hundreds of millions of dollars from tobacco suits and who also happens to be the brother-in-law of Senate Majority Leader Trent Lott. Attorneys “generally declined to identify the companies they plan to name as defendants, in part to preserve the element of surprise”. Class-actioners Cohen, Milstein, Hausfeld & Toll “are preparing a national class-action suit against a leading managed-care provider on behalf of eight million members” which could be filed within days as soon as they finish their process of shopping for favorable jurisdictions: “We haven’t decided which forum yet,” says spokesman Joseph Sellers. (Laurie McGinley and Milo Geyelin, “Attorneys Prepare Suits Against HMOs,” Wall Street Journal, Sept. 30).
September 30 —Overlawyered.com now three months old; 45,000 pages served. Monday set a new daily hit record for us, and then we promptly broke it on Tuesday. Thanks for your support!
September 29 — ADA protection for boozing student athletes. How very foolish of Warren Township High School in suburban Chicago to think it could get away with its rule saying you’d be kicked off its varsity basketball squad if you were caught driving under the influence. Didn’t it know federal law now defines alcoholism as a disability? “The boy has a recognized medical condition for which he has sought treatment,” said an attorney for 17-year-old Rickey Higgins, who filed suit earlier this month under the Americans with Disabilities Act (ADA) seeking $100,000 in compensation and reinstatement to the team. (Amanda Vogt, “Ineligible Athlete Sues High School”, Chicago Tribune, Sept. 9; “Teen alcoholic sues to get back on basketball team”, CNN, Sept. 20.)
September 29 — Employment-law retaliation: real frogs from “totally bogus” gardens. One quarter of cases filed with the Equal Employment Opportunity Commission now charge “retaliation”: the employee’s working conditions deteriorated in some way after he or she filed a legal complaint or testified regarding someone else’s. “Many managers ‘may not realize that retaliation does not require a valid underlying claim,’ said John D. Canoni, a partner at the Nixon Peabody law firm in New York. ‘You can have a complaint that’s totally bogus, unfounded and unrealistic, but if someone reacts against you because of that claim, even if it was bogus,’ you can win a retaliation suit, he said.”
Particularly dangerous is for companies to take action against employees based on admissions of misconduct that emerge in their sworn testimony; to do so is seen as punishing them for participating in legal proceedings. The 11th Circuit gave a green light for trial to a wrongful termination suit by a Birmingham, Ala. manager fired after he admitted sexually harassing a receptionist in testimony arising from her suit. In another recent case, a jury found against employee Oliver Medlock on every other count, but decided it was retaliation for Ortho Bio-Tech Inc. to have suspended him based on revelations in his deposition; the 10th Circuit in Denver upheld its $460,000 award.
“So what are the lessons for employers?” asks the New York Times‘ Richard A. Oppel Jr. “In a nutshell: get rid of problem employees quickly. Be aware that some employees might file discrimination claims or lawsuits in an effort to protect their jobs. If they do, and if you dismiss or discipline them later, be sure to base your decision on facts collected independently by you and be sure not to cite depositions or anything else connected with their lawsuits.” (“Managing: Retaliation Lawsuits are a Treacherous Slope”, New York Times, Sept. 29 — full story) (free, but registration required).
September 29 — Feds’ tobacco shakedown: “A case of fraud”. “In April 1997, Attorney General Janet Reno told the Senate Judiciary Committee that ‘the federal government does not have an independent cause of action’ against the tobacco companies. The law has not changed in the meantime, but the Justice Department has filed suit anyway…” (Jacob Sullum, National Review Online “NR Wire”, Sept. 24).
“Can you sue the government for fraud?” a Chicago Tribune editorial wants to know. “Not only does this lawsuit, which was promised by President Clinton in his State of the Union address, insult the intelligence of any thinking person, but it also continues the corruptive practice of using litigation to achieve ends that duly elected lawmakers have declined to legislate….Congress can prevent this usurpation of its authority and it ought to, by withholding money for the Justice Department to pursue the case. If Congress declines to do that, then the tobacco companies ought to refuse to settle, but should make the government prove and win its case. It might be the one great public service they ever perform.” (“How Not To Regulate Tobacco”, Sept. 24)
The editors of the New York Post call the suit “the latest prosecutorial abuse of the Racketeer-Influenced and Corrupt Organizations (RICO) law…the first time, however, that Washington has targeted an entire industry as a racketeering enterprise … profoundly disingenuous” (“The Wrong Way on Tobacco”, Sept. 24). “This administration is using the court system to extract money from the industry that it couldn’t obtain politically. Who are the real racketeers here?” asks a Detroit News editorial. “If the government wants more revenue and tighter regulations on the companies, it should try to get legislation passed — not pervert the justice system with a show trial.” (“A Case of Fraud”, Sept. 27). “There’s a deeper, disturbing trend at work — the notion that because government pays for some people’s health care, it is justified in regulating risky behavior in order to control costs,” notes the Savannah Morning News. “That’s an invitation to totalitarianism.” (“Reno butts in”, Sept. 28).
September 28 — Drastic remedy for unruly classrooms. Theodore Brown, a veteran math instructor at Savannah Technical Institute, is suing students Amanda Glover and Rechon Ross for $100 million each in punitive damages and court costs. Among allegations in his suit is that Glover “refused to purchase a textbook and disrupted the learning process by borrowing books from other students during class.” He also says the two women verbally abused and defamed him, resulting in embarrassment, humiliation and trouble with his supervisors. Brown, who is representing himself without a lawyer, was not forthcoming with specifics of the latter incidents, not wishing to “give my case away”.
Ross said that “[e]ven the sheriff’s deputy who served me with the paperwork was laughing,” but that it was harder for her to see the humor: she had been “working two jobs and I went back to school to be able to do better for my kids,” she said. “Then in my first semester I ended up with this.” In an interview with the Savannah Morning News, Brown brushed off a suggestion that the vast sums he was demanding might prove uncollectable should he win the case. “You heard about the man that only had $23 in his bank account the morning he hit the lottery for $187 million,” he said. “You never know what people have.” But, asked the reporter, “is a $100 million lawsuit a reasonable way to teach a student a lesson about proper classroom conduct?” “This is America,” he replied. (Jenel Few, “Teacher sues students for $100 million each”, Savannah Morning News, Sept. 13)
September 28 — $49 million lawyers’ fee okayed in case where clients got nothing. Dismissing all objections, the Florida Supreme Court has granted final approval to settlement of the flight attendants’ secondhand smoke class action mentioned in passing in our July 8 commentary. The case induced a promise from the tobacco industry to donate $300 million to charity; flight attendants can go ahead and press individual claims if they want, but aren’t guaranteed any results; and husband-and-wife litigators Stanley and Susan Rosenblatt of Miami were accorded (the technical term is “waltzed off with”) $49 million in fees (Jim Oliphant, “Lawyers in Fla.’s Big Tobacco Reap $50 Mil”, Miami Daily Business Review, Sept. 20)
September 28 — Andrew Tobias’s daily column. Our favorite personal finance advisor and auto insurance crusader devotes his online column today to this site. If you’re looking for the particular Overlawyered.com items listed in his column, check these archives and those for the first half of September (Sept. 11-20 dates inclusive).
September 28 — New Overlawyered.com discussion forums. Today marks the unveiling of our experimental bulletin boards which provide a way for our visitors introduce themselves, discuss current headlines, and generally hold forth. Subtopics open for discussion, with volunteer moderators, include class actions, harassment law and family law, and more volunteer moderators are encouraged to step forth. Being well behaved, our visitors all realize the ground rules that prevail in these sorts of forums (no personal attacks, copyright-trampling, undue commercialism, etc.) and being public-spirited, they call instances of such postings to the attention of moderators or other site management. Posting on the forums requires prior registration and a valid email address. Have fun. [forums now closed]
September 27 — Seesaws as museum items. Three years ago the Connecticut Supreme Court, in the case of Conway v. Wilton, casually struck down the longstanding protection that the state’s towns and cities had enjoyed against being sued over free recreational use of their facilities. Across the state, towns tore out seesaws and merry-go-rounds and closed down hiking and bicycling trails; others turned down open-space donations or gave up plans to acquire ponds and other presumed hazards. Trial lawyers dismissed all this as overreaction, declaring that towns that behaved carefully wouldn’t face an undue burden, and their influence easily blocked efforts in the state legislature to reverse the decision.
But now Dan Uhlinger in the Hartford Courant reports that the fears are coming true: even towns that spent heavily on safety precautions are being taken to court. South Windsor invested in a “$50,000, supposedly injury-proof playscape” ordered to federal safety specs but faces a suit anyway on behalf of a six-year-old who fell and broke her wrist. “It’s gotten to a point where everybody is suing towns because that’s where there’s big pockets,” said town manager Matthew Galligan. “If this keeps going, people not taking responsibility for their own kids, there won’t be any more playgrounds.”
Other recent playground suits have targeted the towns of Ellington and Winsted, the latter of which, as it happens, is the proposed site of hometown lad Ralph Nader’s Museum of American Tort Law. “You can’t swing a dead cat without being sued,” said Meriden deputy city attorney Christopher Hankins (who for that crack is going to have the Humane Society as well as the trial lawyers on his back). “Municipalities try extremely hard to make life better for citizens, but the courts strip away [liability protection]. It boggles the mind. It just goes to show no good deed goes unpunished.” (Dan Uhlinger, “Towns’ Worst Fears Realized: Suits Follow Playground Mishaps”, Hartford Courant, Sept. 24 — link now dead)
September 27 — More things you can’t have. Unpasteurized (i.e., real) apple cider from Connecticut farmer’s markets in the fall. “My insurance guy says don’t even think about trying to carry it,” said the proprietor of one booth, “because people get sick all the time and some of them are going to figure it was the cider whether it was or not.” Old-line cider presses have been closing down, he said, in favor of the industrial operations. Community square and contra dances in New England, long run by volunteers on a shoestring, are being smothered by the liability insurance hassle more than by the cost of church or hall space, callers and bands.
September 27 — New page on Overlawyered.com: What happened to personal responsibility? Eleventh and latest in our series of topical pages assembles cases in which complainants sue over risks that they or their parents could have anticipated or avoided, like playground seesaws and unpasteurized cider, and briefly explicates the slow decline of old legal precepts like assumption of risk, waiver/disclaimer of liability and contributory negligence. Definitely a page to read while nursing your steaming McDonald’s take-out coffee, if you can still find any.
September 27 — “Objection, your honor! Here’s a site you’ve got to love.” Overlawyered.com is picked as a “Planet Hot Site” this week by PioneerPlanet.com, the well-traveled website of the Twin Cities’ St. Paul Pioneer Press, a newspaper known for its leadership in covering the Net. Thanks!
September 25-26 — Not just our imagination. Thanks to Steve Milloy of the Junk Science Page for catching these items: a San Jose Mercury-News letter to the editor in all evident seriousness calls for a trial lawyer onslaught against “Big Fast Food” along tobacco lines, while a veggie-oriented group called the Physicians Committee for Responsible Medicine urges a similar jihad against “Big Meat”. (“Fast food ads take aim at kids”, letter to the editor from Matt Mascovich, Sept. 24, link now dead; “Physicians Advise Feds to Go After ‘Big Meat’ Next”, U.S. Newswire, Sept. 23).
September 25-26 — We ourselves use “sue”. So-called keyword piracy is the practice of using your competitors’ names as index terms for your website on search engines, so that people searching for your rivals’ sites end up visiting yours instead. Courts are quite likely to uphold the practice as lawful, which is lucky for three well-known presidential candidates whose websites use the technique (Tech Law Journal, Sept. 3).
September 25-26 — Give, and receive. Webzine Capitol Hill Blue says trial lawyers have nearly doubled the pace of their political contributions from the same period four years ago, dispensing $4.1 million in political contributions in first six months of 1999. “We continue to urge our whole law firm to be active in the political scene,” said prominent plaintiff’s lawyer Joseph Rice of Charleston, S. C.’s Ness, Motley, Loadholt, Richardson & Poole, which gave $303,000 in the first half of 1999, up from $248,650 during all of 1995-96. All these sums appear relatively small, however, considering that Rice’s firm alone has been estimated to be in for somewhere between $1 billion and $10 billion in tobacco fees courtesy of these same politicians, with billions going to other law firms as well. Is someone being ungrateful here? (“Trial lawyers use campaign contributions to save their bacon”, Sept. 12)
September 25-26 — Weekend reading: evergreens. Pixels to catch up with on the houseboat or hammock, if you missed them the first time around:
* Jonathan Rauch, “Tunnel Vision”, National Journal, Sept. 19, 1998 (welcome to the era of “micro-government”: “rights-based lawsuits [are] nothing less than America’s third and most extraordinary wave of regulation”) (link now dead).
* Classic, colorful accounts of lawyer-abetted accident fraud: Ashley Craddock and Mordecai Lawrence, “Swoop and squats”, Mother Jones, Sept./Oct. 1993; Alan Prendergast, “The Fall Guy” Westword (Denver), Dec. 5, 1996.
* Stephen Baskerville, “Why Is Daddy in Jail?”, The Women’s Quarterly, Winter 1999 (Independent Women’s Forum), reprinted at Fathermag.com. (“For the crime of wanting to see his child.”)
September 25-26 — Correction: name of magazine whose clips feds consider it an act of racketeering to circulate. We’ve spent so much time staring at the screen our eyesight is beginning to blur. In the Sept. 23 item below (“Feds: dissent = racketeering”) we reported in error that the charge of “Racketeering Act #18” against cigarette companies was of their circulation of a clip from Time magazine. In fact, it was a clip from the now-defunct True magazine. Correction is incorporated below. Sorry!
September 24 — Murderers’ rights. Gerald Turner has won a settlement, its amount held confidential, of his discrimination complaint against Waste Management Inc., which had declined to hire him to work at its recycling center in Madison, Wisconsin. Turner was nicknamed the “Halloween Killer” because of his 1973 rape-murder of 9-year-old Lisa Ann French, who disappeared while trick-or-treating in Fond du Lac. He was released last year as required by law, despite a psychiatrist’s warning that he was still dangerous and despite an unsuccessful attempt by the state to revoke his parole, saying he’d waved a butcher knife at a caseworker at his Madison halfway house.
On his release Turner applied for a job with Waste Management sorting recyclables, but the company said it did not want to employ him because of his record, though it frequently hired persons released after serving time on less serious counts. He proceeded to file a complaint under the Wisconsin Fair Employment Act, one of only a few state employment discrimination statutes that establish convicted criminals as a protected class. Under the terms of the act, employers may not turn away convicts unless they are prepared to show in court, on pain of back pay and other penalties, that the job is “substantially” related to the record of criminality. Waste Management officials said the recycling job would give a worker access to various dangerous materials that frequently turn up in bins, including “weapons, used hypodermic needles, and BB guns.” They also said scout troops and school field trips regularly toured the facility, more than a dozen having visited during the past school year. However, the state Department of Workforce Development found evidence that in its view Turner had been discriminated against and said his complaint could proceed.
Thomas Snyder, the retired sheriff who’d served as special investigator in the Lisa Ann French murder, said he was “damn upset” at the news that Turner had obtained a settlement of his complaint. “[Turner] always made sure he knew his rights. He could quote them to you.” An editorial in the Milwaukee Journal Sentinel calls the settlement a “travesty”, while a letter-writer from Johnson Creek called Turner a “de facto aristocrat, with special powers, benefits and protections not allotted to mere commoners” who would apparently be able to enlist “all the power and authority of [the government] on his side and against us for the rest of his life, specifically because he raped and murdered 9-year-old Lisa Ann French.” However, Jeff Hynes, co-chairman of the Wisconsin Employment Lawyers Association, defended the law as one that “protects the rights of thousands of Wisconsin workers” and said people should not “overreact to this case”.
(Milwaukee Journal Sentinel coverage by Jessica McBride and others: “Recycler’s refusal to hire Gerald Turner is illegal, agency finds,” Aug. 25; “‘Halloween Killer’ ruling fuels convict-employment conflict”, Aug. 25; “Company’s refusal to hire Gerald Turner is illegal, agency says”, Aug. 26; “State: Company may have discriminated against ‘Halloween Killer'” (AP), Aug. 27; “Timeline of Gerald Turner case”, Aug. 27; “Turner not entitled to job” (editorial), Aug. 29; letters to the editor, Aug. 31; “‘Halloween killer’ reaches settlement with waste company” (AP), Sept. 19; “Turner settles claim over recycling job”, Sept. 20; “‘Halloween Killer’ reaches settlement with waste company” (AP), Sept. 21; “Turner exploits hiring law” (editorial), Sept. 21.)
September 24 — Feds as tobacco pushers. Columnist Andrew Glass recalls the days when “when my government superiors strongly urged me to start smoking. ‘Smoke ’em if you got ’em,’ the drill sergeants would tell us back in the 1950s at Fort Dix, N.J. Standing around without a glowing butt in hand during that winter could lead to orders to do something useful, like scrubbing pots….Any chance government’s suit will take note that from Civil War times until 1956, federal law required the military to provide nearly free supplies of tobacco to enlisted personnel?”
“Nor will you see anything in the papers filed in the courthouse about Clinton’s move last year to strip $15 billion in medical care and disability pay to veterans harmed by smoking….In a bid to pacify the dying veterans whose care was cut off, a provision was put in that huge highway bill that directed the Department of Veterans Affairs and Justice Department to sue the tobacco industry to pay for veterans’ smoking-related illnesses.” (“The evils of a smoking government,” Cox/Minneapolis Star-Tribune, Sept. 24).
September 24 — Hurry up, before the spell breaks. “‘A major part of this lawsuit is public attitude and I can tell you, it’s waning,” said Ron Motley, a South Carolina trial lawyer who represented Texas and 30 other states in lawsuits against the industry.” Motley complained that the Department of Justice was not making enough haste in its filing. (Mark Curriden, “Government to sue tobacco makers”, Dallas Morning News, Sept. 14).
September 23 — Feds: dissent on smoking = racketeering. Is it the most cynical act yet of the Clinton presidency, or the most incompetent act yet of Janet Reno’s tenure as Attorney General? You be the judge. Yesterday, the ironically named Department of Justice — which not long ago was accurately warning higher-ups that there wasn’t a strong enough legal basis to file a federal lawsuit against tobacco companies — proceeded to file one anyway, arguing that 1) the law should be changed by retroactive judicial fiat to provide a federal right to recoup from cigarette-makers moneys spent on smoker health; and that 2) a remarkably wide range of past statements and actions by tobacco companies, aimed at defending their business in public controversy, should now be redefined as instances of fraud and racketeering and subject to civil punishment (complaint and appendix in PDF format; links now dead).
The absurdity of the retroactive recoupment claims — and the threat they pose to everyone else, from burger chains to the proprietors of ski resorts, who could be charged with enabling risky consumer activities that drive up health bills — has by now been widely aired. Likewise with the notions that the federal government was somehow deceived about the risks of smoking, or that it was incapable of raising taxes at the time, as opposed to retroactively, if it saw fit to change the rules of the game.
Equally ominous, but less widely scrutinized, is the second theme, that an industry’s defense of its position in public controversy can now be defined as fraud and racketeering for which it can be made to pay damages. People in other lines of business should pay close attention, since 1) all lines of business get caught up in public controversy from time to time; 2) disputants in such controversies naturally tend to see each others’ assertions as false and misleading; and 3) there can scarcely be a better way to silence one side than to concoct a theory that exposes it to charges of “racketeering” for disseminating views its opponents consider erroneous.
What kinds of acts, in particular, does the Clinton Justice Department now define as “racketeering”? Scroll through the complaint’s appendix, which enumerates all 116 supposed acts of racketeering, and you find that Acts # 2, 3, 5, 6, 7, 8, 10, 12, 21, 24, and a long list of others consist of…[DRUM ROLL]…sending out press releases. Act #18, committed in 1968, consists of the Tobacco Institute’s having sent around to civic leaders a copy of an article that had appeared in the magazine True, favorable to its point of view. (We, too, have sometimes gotten really annoyed at magazine articles we disagree with, but seldom to the point of branding their distribution an act of racketeering.)
Act #31 consists of a 1973 move by the Council for Tobacco Research to support the work of a researcher who’d worked on showing that air pollution played a major role in pulmonary disease, while acts #15, 25, 194 and others consist of efforts to support research into possible therapeutic benefits of smoking, such as the reduction of stress. As it happens, neither of these research efforts proved to be an entirely dry hole — air pollution does play at least some role in pulmonary illness (if anything, it’s a role many public health activists have tended to overestimate), while the uses of smoking in helping, e.g., mental patients gain better control of their disorders are increasingly recognized.
Again and again, the complaint treats as acts of racketeering any and all moves to dispute or cast doubt on the federal government’s own pronouncements on the subject. Thus Act #33 consisted of sending out a 1974 press release which “attacked the 1964 U. S. Surgeon General’s Report on smoking and health”. Any venturing of dissent from the government’s line — however cautiously worded, even downright mealy-mouthed, it might be — seems to be judged worthy of a racketeering charge in the complaint. Thus “Racketeering Act No. 116” reads — in its entirety — as follows:
“Racketeering Act No. 116: During 1999, the exact dates being unknown, defendant BROWN & WILLIAMSON did knowingly cause to be posted on the Brown & Williamson Internet web site a document entitled “Hot Topics: Smoking and Health Issues.” Although Brown & Williamson recognized “that, by some definitions, including that of the Surgeon General in 1988, cigarette smoking would be classified as addictive,” the company stated: “Brown & Williamson believes that the relevant issue should not be how or whether one chooses to define cigarette smoking as addictive based on an analysis of all definitions available. Rather, the issue should be whether consumers are aware that smoking may be difficult to quit (which they are) and whether there is anything in cigarette smoke that impairs smokers from reaching and implementing a decision to quit (which we believe there is not).” All in violation of Title 18, United States Code, Sections 1343 and 2.”
Page 21 of the complaint says it all: it charges the defendants with taking “false and misleading positions on issues“. [emphasis added] If such is now to constitute a legal offense, who will the authorities charge next?
September 22 — “Personally agree with” harassment policy — or you’re out the door. In settling mass sexual-harassment complaints, the Equal Employment Opportunity Commission increasingly demands that employers like Mitsubishi and Ford agree to block the career advance of managers who’ve perpetrated no harassment themselves, but are deemed insufficiently zealous about rooting it out in others. The Christian Science Monitor reports that corporate defendants are agreeing to hinge supervisors’ evaluations in part on their vigilance in implementing anti-harassment policy, and says one of the “details still to be worked out” is the extent to which supervisors’ performance on the issue will be assessed by polling their subordinates.
Another detail “still to be worked out”, according to the Monitor report, is whether supervisors in future will “have to be actively promoting the policy – or just not interfering with it”. “Salaried workers at all 23 U.S. Ford plants — with a total of about 40,000 workers — won’t even be considered for a promotion for two years if they’ve been disciplined for not supporting [emphasis added] the policy against sexual and racial harassment.” Chicago employment lawyer Michael Karpeles says such policies will soon be “standard operating practice” at U.S. companies. The most interesting element in the quoted sentence, it would seem, is the phrase contemplating discipline of managers for the offense of “not supporting the policy”. What can this mean? Are Ford managers henceforth to be denied promotion if they personally think the EEOC-dictated policy goes overboard in regulating conversation and other workplace interaction and wish it could be changed, though they’re willing to grit their teeth and enforce it?
We were reluctant to jump to such a conclusion — but then we saw the Monitor going on to quote another employment-law expert, Jon Zimring of Duane, Morris & Heckscher in Chicago. “In the end, says Mr. Zimring, managers will now have to ‘communicate to their employees that they agree with, personally believe in, and will enforce the harassment policy.'” [emphasis added] Should this view prevail, those who dissent from the official line, harbor doubts or qualms about it, or for any other reason prove unwilling to announce their enthusiasm for it, will sooner or later find themselves excluded from positions of responsibility in the American corporation. The new harassment law has drawn criticism for the casual way it presumes to control speech as well as conduct in the American workplace. Can we doubt that it’s now headed toward imposing an orthodoxy of opinion, as well? (Abraham McLaughlin, “When others harass, now managers lose pay”, Sept. 10 — full story)
September 22 — Effects of shareholder-suit reform. Four years ago, alarmed at the prevalence of “strike suits”, Congress passed the Private Securities Litigation Reform Act of 1995, which raised the standards for getting into court with class-action lawsuits purporting to represent shareholders. It was one of the very few liability reforms enacted at the national level in recent years, and consumer advocates predicted doom. But surveys raise doubt that the law has thus far greatly affected the volume of securities litigation; indeed, the Stanford University Securities Class Action Clearinghouse reports that the number of suits filed against companies hit another record last year, notwithstanding the buoyant stock market.
Recent stories in the legal press, however, suggest that the law may have had a salutary effect by raising the average quality of suits, with cases now more likely to be based on substance rather than the mere hope that something will turn up in discovery. Philadelphia’s Legal Intelligencer says litigators in that city are “as busy as ever” even though the 1995 law “has caused plaintiffs to become more selective” about what they file. Plaintiff’s attorney Sherrie Savett of Berger & Montague says that although judges are dismissing more suits, those that survive are producing larger settlements. The Miami Daily Business Review emphasizes plaintiffs’-side complaints about the higher rate of dismissals, but concludes with a remarkable quote from “Michael Hanzman, a Miami lawyer who has brought several investor suits,” who “concedes that the law may be working as intended. ‘Good cases are still good cases,’ Hanzman says. “The act gave a way for a court to weed out the bad ones. I don’t think that was a bad thing.'” (Robert L. Sharpe, “Despite Reform, Shareholder Suits Still Big in Philly,” The Legal Intelligencer, August 12; Jim Oliphant, “‘Business’ Law”, Miami Daily Business Review, July 3)
September 22 — 35,000 pages served on Overlawyered.com. The pace accelerates steadily, with 10,000 served just in the past two weeks. Thanks for your support!
September 21 — Skinny-dipping with killer whale: “incredibly bad judgment”. Florida’s Sea World resort has been sued for “several million” dollars by the surviving parents of 27-year-old drifter Daniel Dukes, who apparently decided to take a dip after closing hours in the 7-million-gallon pool of Tilikum, largest killer whale in captivity. Dukes’s scratched and bruised body, clad only in underwear, was found July 6. A medical examiner said he died of hypothermia — the pool was kept at a frigid 52 degrees — and drowning.
A drifter who’d spent a decade in Austin before making his way to Florida late last year, Dukes had been arrested in separate incidents since then for shoplifting and marijuana possession, the Miami Herald reports. His last known address was a Hare Krishna temple in Coconut Grove where he spent several weeks last spring; the Krishna followers described him as likable but “prone to childish behavior and moods” and sometimes refusing to talk for days. Evading security at the theme park, Dukes spent a day or two in or around its bounds and even built a little camp “complete with Krishna statues.” No one knows how he ended up in the pool, but the lawsuit filed by his surviving parents, who live in Columbia, S.C., speculates that perhaps the whale pulled him in.
Plaintiff’s lawyer Patricia Sigman of Altamonte Springs said the park had been negligent in failing to post warnings that visitors should not enter the water with the 5-ton killer whale, and in portraying the sea creatures as “huggable” when in fact they are “extremely dangerous”. Sea World executive vice president and general manager Vic Abbey begged to differ: “Not only was that incredibly bad judgment to try to take a dip with a killer whale but remember, this water is 50 degrees, ice-cold water.” (Paul Lomartire, “Parents of drifter who died in whale tank sue SeaWorld”, Cox/Miami Herald, Sept. 20; CNN, Reuters/ABC). (& see Oct. 7 update: case dropped).
September 21 — Filing fees curb prisoner litigation. New York state legislators and Republican Gov. George Pataki have approved a measure aimed at discouraging excessive litigation by correctional inmates by requiring them to fork over filing fees ranging from $15 to $50 per legal action they commence, depending on their ability to pay. A spokesman for Democratic state attorney general Eliot Spitzer calls the move “a step in the right direction”, saying a third to one-half of all the trial work done by the attorney general’s field offices arises from prisoner suits, “most of which are found to be meritless and dismissed by judges.” About 1,000 suits are currently pending. Prisoner advocates agreed to the concession in exchange for Pataki’s agreement to restore $3.5 million in annual funding for lawyers who sue on behalf of inmates. (Kyle Hughes, “Prisoners must pay to sue”, Rochester Democrat and Chronicle, Sept. 19)
September 21 — Disabled accommodation vs. testing fairness. In a recent final exam given to Cornell undergrads, three of the 102 students “took the exam down the hall from the rest of the class” in private or semi-private rooms. “Both extra rooms had their own proctors, who administered a special version of the test and answered the students’ questions about the definitions of words and the meaning of questions. The three students also had extra time to complete the exam, ranging from one and a half to two and a half times as long as for the rest of the class.” It was, of course, a case of legally entitled accommodation for learning disability, and this insider’s account by Cornell human development specialists Wendy M. Williams and Stephen J. Ceci spells out in more detail than usual how such legal demands work, their unfairness to other students, and the harm they’re doing to the struggle to keep up standards generally. The accommodation demands — which can include the right to consult reference books during a test, or retake it if the first score is low — sometimes appear to represent little more than “a wish list made up by high-school counselors or private doctors hired by upper-middle-class parents.” (“Accommodating Learning Disabilities Can Bestow Unfair Advantages”, Chronicle of Higher Education, August 6 — full article)
September 20 — The lawyer spigot. Revealing chart and article in Forbes on continued breakneck pace at which new lawyers are being minted and sent into the world. Back in the early 1960s the flow of new law degrees ran only modestly ahead (20 or 30 percent) of the pace of medical degree issuance. Now it runs 160 percent higher — that’s 2.6 new lawyers for every new doctor. The truly huge boom came in the 1970s, the period in which the concept of litigation as a way of solving society’s problems really established itself. Since then the trend has continued steadily upward, if less precipitously. Meanwhile, the flow of new dental degrees has actually declined significantly since 1980, reflecting genuine advances in prevention and dental care. The article mentions this website and quotes its editor as saying that unlike dentists, lawyers tend to create work for each other: “I can’t help wondering what that dentist line would look like if we gave dentists a license to knock out people’s teeth.” (“Charticle: The lawyer spigot” by Peter Brimelow, research by Ed Rubinstein, Forbes, Sept. 20 — full article and chart)
September 20 — “Black robes, back rooms”. If you don’t play ball with the local machine you stand little chance of becoming a judge on Long Island, reports Newsday as it kicks off a six-day series on the politicized Nassau/Suffolk judiciary. The paper calls the process of selecting candidates for elected judgeships “as political as any backroom deal to fill a seat in the State Assembly or a top post at Off-Track Betting,” and says that “far from renouncing their political ties once they take the bench, Long Island judges hire politically connected applicants for key courthouse positions, give lucrative receiverships to former campaign managers and politically active lawyers, and continue to pay homage to their party leaders at public events.” One “well-regarded expert in matrimonial law” has found a niche as full-time clerk to a sitting judge but has had to give up his “dream” of becoming one himself because he declines to affiliate with either political party. Critics and even some insiders say unqualified candidates are slipping through: “If politicians selected their surgeons … the way they do some of their judges,” said former GOP county committeeman Victor Regan, “there would be a lot of dead politicians.” (series beginning Sept. 19)
September 20 — Judge throws out four WWII reparations lawsuits. You’d never guess from much of the recent coverage, but it wasn’t this generation of American litigators who came up with the idea of trying to do something to help the victims of the Second World War. The issue of reparations and of compensation more generally was taken up in much detail during the war and its aftermath, and led to the adoption of comprehensive treaties in the negotiation of which a leading role was played by the U.S. State Department. Last week, in a 78-page opinion, federal judge Dickinson R. Debevoise, Jr. dismissed four class actions over Nazi-era atrocities, saying that to reopen (or, more bluntly, breach) those treaties “would be to express the ultimate lack of respect” for the work of Truman-generation U.S. policymakers — aside from which the Constitution clearly entrusts the conduct of these matters to the executive rather than judicial branch. (AP/Court TV, Fox News, Washington Post, Sept. 13; Henry Weinstein, L.A. Times, Sept. 14, all but first link now dead)
September 20 — Massachusetts spanking cases. The state’s highest court heard arguments last week in the case of Woburn, Mass. minister Donald Cobble, charged with child abuse for punishing his nine-year-old son with the end of a leather belt while reading from the Bible; the state Department of Social Services “considers spanking child abuse if it causes tissue swelling” and Rev. Cobble had refused to promise not to do it again. Last month demonstrators from three inner-city Boston churches protested the conviction of Brenda Frazier of Roxbury for giving her 10-year-old son a belt-stropping that left welts visible three days later; Ms. Frazier received a suspended two-year prison sentence and was ordered to attend classes. A prosecutor says one factor in deciding whether to press charges is whether a parent is “remorseful and willing to work with authorities,” but many of those charged believe the practice is required by their religious tenets (Boston Globe, Aug. 26, Sept. 13; Fox News, Sept. 13)
September 17-19 — Update: was it reasonable doubt, or was it the miles? As trial begins in New York on murder-for-hire charges against erratic tycoon Abe Hirschfeld, the presiding judge has ruled that Hirschfeld may not give jurors money after the trial, which is what happened earlier this month when he handed checks for $2,500 apiece to jurors who deadlocked in his tax fraud trial (see Sept. 13 item). Although such gifts might not be illegal as a general matter, declares judge Carol Berkman, they should be forbidden by court order in this case because they “don’t pass the smell test”. But Hirschfeld lawyer Arthur Aidala maintains that the court lacks authority to control what either jurors or an acquitted private citizen do after a trial is over: “You can’t order people not to do something because it smells bad,” said Columbia law professor H. Richard Uviller. (Samuel Maull, Yahoo/AP, Sept. 14)
September 17-19 — Update on dream verdict: tainted by “60 Minutes”. In Stanislaus County, California, Judge Roger Beauchesne has granted Ford a new trial on a jury’s July 12 award of $290 million in punitive damages in the Romo Bronco-rollover case (see Aug. 24 commentary), leaving mostly intact the $5 million compensatory-damages portion of the verdict. The judge said the consideration of malice and punitive damages had been tainted by inaccurate and prejudicial discussions in the jury room of a CBS “60 Minutes II” segment which aired this May 19, which attacked Ford over alleged safety problems in older Ford Mustangs. One juror (who may or may not have been recounting the program’s contents secondhand) said former Ford president Lee Iacocca had appeared on screen in the “60 Minutes” episode saying the firm would rather fend off lawsuits than fix safety defects — the only problem being that the program did not show Iacocca saying anything of the sort. In addition, the judge cited affidavits indicating one juror had told her colleagues about an “omen” that had come to her in the form of a dream revealing Ford’s malice and evil in the case, further informing them that if there was a chance to save lives they did not need to follow the law, and that what the plaintiff’s lawyer said should be considered as evidence.
Plaintiff’s attorney Joseph Carcione Jr. said the dream-omen episode could scarcely constitute juror misconduct because misconduct means something deliberate, while a dream is “involuntary by its very nature”. Otherwise, the durable result of the case may be to stand as permanent judicial notice of the way slanted TV journalism, and the misimpressions it leaves, can seep into the workings of the court system and lead to miscarriages of justice. (AP/Detroit News, Sept. 11). Update Aug. 27, 2002: appeals court reinstates verdict, Ford seeks review by California high court. More developments; further update Nov. 26, 2003 (appeals court reduces verdict in light of U.S. Supreme Court guidance).
September 17-19 — Chicago’s $4 million kid. How many 3-year-olds become the subjects of custody battles that cost a reputed $4 million — payable by the taxpayers of Illinois, no less? The Chicago Tribune reports that litigation is heating up again in the case of Baby T, who’s been tugged-at for practically his whole life between his biological mother, a former drug addict named Tina Olison who gave him up at birth, and foster parents Edward and Anne Burke, who say he’ll fare better under guardianship. It’s not unusual for ten lawyers to be seen in court at a time on the case, and mutterings are heard that the Illinois Department of Children and Family Services might not have invested so heavily in defending T against a change in his situation had not his foster parents been persons with such political clout: Edward Burke is an alderman and the Hon. Anne Burke a state appellate judge. (Bonnie Miller Rubin and Robert Becker, “Burkes file their own legal salvo in Baby T battle”, Sept. 15 — full story)
September 17-19 — Personal responsibility wins a round. No, you can’t always get compensated for every scrape you get into, not even if there are deep pockets on the scene and you sue in Philadelphia. A federal judge turns back a suit by John Hansen, who got drunk at a nightclub in Chester County, decided to climb a high voltage catenary on the railroad tracks and found himself in a hospital 30,000 volts later. His lawyer tried everything from the theory of “foreseeable trespassing” to the notion that drunkenness should count as diminished mental capacity, but U.S. District Judge Robert F. Kelly wasn’t of a mind to give up the old doctrine of assumption of risk: “Plaintiff did have a choice in this matter — he should not have climbed the structure.” (Shannon P. Duffy, “Being Drunk Doesn’t Excuse Trespass”, The Legal Intelligencer, Sept. 1 — full story)
September 17-19 — Plaudits keep rolling. “If you think America’s court system can be out of touch with reality, you’ll find comfort in this Web site. Begun last July, Overlawyered.com is a compilation of news stories and legal writings that illustrate the need for civil justice reform. The site, which is updated regularly, tackles a wide range of hot-button topics, including flirting in the workplace, tobacco, product liability and gun makers.” Plus one more nice paragraph, all showcased as prominently as we could wish in the high-tech-news section of the Sept. 16 Sacramento Bee (Eric Young, “High-tech: Site-seeing and tech tips” — full item).
September 17-19 — Massachusetts high court opens lawyer-ad floodgates. Dramatizations? Celebrity testimonials? Sure, bring ’em on! says the Bay State’s Supreme Judicial Court, spelling an apparent end to a six-year effort to curb misleading or just plain grotesque let’s-you-and-him-fight ad campaigns. Unsolicited letters from lawyers seeking business will no longer have to be labeled as ads, either. (Steven Wilmsen, “SJC eases lawyer advertising rules; state bar assails ruling”, Boston Globe, Sept. 9).
September 17-19 — Slow down, it’s just a fire. Canadian courts, like American, now frequently strike down the use of strength tests in hiring for police, firefighter and other physically demanding jobs, their rationale being that the tests promote sex bias because women don’t perform as well on them on average as do men. In the latest case, the Supreme Court of Canada ruled that Tawney Meiorin was discriminated against by being told she wasn’t suitable for a British Columbia firefighting job after she repeatedly failed a test requiring her to run 2.5 km (slightly over 1.5 miles) in 11 minutes.
Toronto Sun columnist George Jonas writes that “the people most upset by the Supreme Court’s decision” have been female applicants who hadn’t needed the rules bent. “Oh, that’s disgusting,” was forestry worker Janet Rygnestad-Stahl’s succinct reaction. “Women like Marlene Morton and Andrea Camp were not amused either. Both passed regular fitness tests, for B.C. firefighters and the RCMP [Royal Canadian Mounted Police] respectively, one of them (Morton) after some extra training. In a letter to the editor Morton wrote she felt ‘disgusted’ when later the RCMP lowered the standard for women ‘only to allow more to pass.'” (“Court preaches equality, but means parity”, Sept. 16) (see also Sept. 15 commentary on transit-police case, Lanning v. SEPTA) (related article: firefighter cases, etc.)
September 17-19 — “Keep banks colorblind”. If banks start collecting racial data on loan applicants, warns Investors’ Business Daily, trial lawyers are going to have a field day combing through the resulting statistics and using them as the basis for discrimination suits (Sept. 17).
September 16 — Michael and me: a sequel. In New York, filmmaker Alan Edelstein may soon have to stand trial for criminal harassment, having lost a recent bid before a judge to get the charges dismissed. Mr. Edelstein stands accused of following a well-known businessman around with a video camera demanding a meeting to discuss whether the businessman had behaved harshly and arbitrarily in dumping employees from his payroll. Specifically, court documents allege that Mr. Edelstein, who had formerly worked for the businessman and was upset about his dismissal, had used a video camera to record an appearance by his former employer in upper Manhattan; that he placed about thirty phone calls and emails to the man’s office demanding attention for his grievance; and that, using a bullhorn, he interrupted a speech the former employer was giving at the University of Massachusetts. Though a court ruled that these activities did not put the target of his stalking in reasonable fear as to his physical safety, they were undoubtedly a vexing annoyance and an intrusion on his privacy and quiet, and he’s apparently pressing the criminal charges with all due vigor.
What lends piquancy to this tale is that the businessman/target insisting on invoking the law’s severity is none other than Michael Moore, the left-wing filmmaker. Mr. Moore made his reputation with a film called “Roger and Me” in which he followed then-General Motors head Roger Smith around with a video camera to garden parties and other social events, loudly demanding that Smith answer questions about employee layoffs. More recently, as a TV producer, Moore trained a running video camera for weeks on the apartment of Zippergate figure Lucianne Goldberg, ignoring an outcry from those who found this a creepy invasion of Ms. Goldberg’s privacy (Ziff-Davis, Newsweek (link now dead)coverage). In the recent proceedings, criminal court judge Arthur Schack indicated that if the charges were proven the law would be enforced against Mr. Edelstein with all due severity, but noted the irony of Mr. Moore’s role as a complainant over “acts he once perpetuated”. As with many public figures, it would appear Mr. Moore’s Department of Dishing It Out is a lot bigger than his Bureau of Taking It. (Daniel Wise, “Fired Employee of Director Faces Harassment Trial”, New York Law Journal, Aug. 30) Update June 26, 2000 — John Tierney column provides new details.
September 16 — More plaudits. National Review Online has picked Overlawyered.com as today’s “Cool Site of the Day”. The NR Online site far outpaces most political-magazine sites; along with selections from the magazine’s print version, including “Misanthrope’s Corner” columns by the formidable Florence King, it adds plenty of web-exclusive content including political analysis from the magazine’s well-informed Washington bureau, outbound links to major conservative columnists in “The Vibe”, and the indispensable “Outrage du Jour“.
September 16 — Y, oh Y2K? Here’s a sector of Y2K litigation that could spawn billions of dollars in legal expenses. Its neatest feature from a litigator’s perspective: the fighting can proceed with full vigor even if nothing actually goes wrong with the computers on 1/1/2000. It’s insurance-coverage litigation invoking an old maritime doctrine called “sue and labor” under which emergency measures aimed at dodging disaster can be charged to one’s insurer. Many corporate policyholders are therefore hoping to complete the following trajectory: 1) upgrade their computer infrastructure, replacing all antiquated systems; 2) ride out the millennium date with no problems; and 3) send the bill for the upgrade work to their insurers, and sue if they resist paying. (Craig Bicknell, “‘Y2K Iceberg Dead Ahead!'”, Wired News, Sept. 14 — full story) (Update Dec. 26, 2000: New York court rejects first such case)
September 16 — Blind newsdealer charged with selling cigarettes to underage buyer. Sorry, Mr. Noyes, but it says right here you have to check their photo ID, announce triumphant authorities after a sting operation bags the sightless proprietor of a sundries shop in Seattle’s King County courthouse (Kimberly A.C. Wilson, “Shop owner says he was targeted”, Seattle Post-Intelligencer, Sept. 10 — full story).