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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).

Tagged as: ACLU, Alabama, Atlanta, ATRA, attorneys general, Australia, bankruptcy, Beaumont, Chrysler, Cincinnati, Detroit, FELA, free speech, General Motors, Geoffrey Fieger, governors, hospitals, Iowa, jury selection, libel slander and defamation, Manhattan Institute, Michigan, New Jersey, NYC, Philadelphia, Seattle, South Carolina, taxpayers, tobacco, Washington state, Wisconsin, zero tolerance

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