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It fascinates me how other cultures tolerate risk and reject idiot-proofing so much differently than the US. I wonder which way the causal arrow goes with the general litigiousness of American culture: are we litigious because we’re risk-averse, or are we risk-averse because we’re litigious? If the former, perhaps the European example actually reflects the moral hazard of social insurance. (Of course, other photos on the travelogue pages demonstrate other important differences between Denmark and the US.)

Related: Subcontinental Drift on zoos in Southeast Asia.

Update: Amusement-park-loving torts prof Bill Childs comments, which is appropriate, because the post was originally just going to be an email to Childs and a handful of other people before I realized there was no reason not to just expand it into a post.

And another update: a reader writes me to say “Maybe the lawyers in Europe might wake up and start trolling for injured plaintiffs as a result of your posting.” Which might just be the hint to the answer to my question of the causal arrow: we’re litigious because the American system creates incentives to “troll for injured plaintiffs” in a way that the European legal system does not—yet. The perverse incentives for American lawyers in turn create distorted incentives to businesses and consumers, which in turn likely make us less safe because of overwarning leaving us oblivious to obvious risk. Irrational risk-aversion isn’t unique to the US; we see invocation of the “precautionary principle” in Europe frequently.

Of course, risk-aversion may just be a luxury good. In other words, people may just prefer a certain level of irrationality in risk preferences, in which case Americans have more of it, because, as a wealthier society, we can more easily afford to bear the costs of the additional frictions it causes, just as we can more easily afford SUVs. Of course, it doesn’t help to have special interest groups for whom billions of dollars in wealth-transfers rides if Americans start to change their mind about risk-aversion; trial lawyers cater to it, to be sure, but so do many mainstream product advertisers and politicians.

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• Update: U.K. Commons revolt on bill curbing religious speech (2)
• Update: Danish Muslim groups to sue over cartoons (0)
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Out of fear of retaliation from the international brotherhood of radical and bloodthirsty Islamists who seek to impose their will on those who do not believe as they do. …Simply stated, we are being terrorized, and as deeply as we believe in the principles of free speech and a free press, we could not in good conscience place the men and women who work at the Phoenix and its related companies in physical jeopardy. As we feel forced, literally, to bend to maniacal pressure, this may be the darkest moment in our 40-year publishing history.

Somewhere there’s probably an issue of vicarious/employer liability lurking in here — if printing the cartoons did lead to violence, the Phoenix’s owners might well end up having to pay. But of course the venerable alt-weekly’s stance is practically a profile in courage compared with that of editors, publishers, governments and university officials in many other places, including South Africa (bans publication of images), Sweden (reported to have shut down website carrying them), Canada’s Prince Edward Island (university confiscates student newspaper, edict forbids weblog comments) and so on (Michelle Malkin roundup, Feb. 9). Commentaries worth reading: Krauthammer, Kinsley, and, from a different perspective, a commenter at Andrew Sullivan’s. (More on the cartoons here and here.)

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The Blair government’s primary motivation for the bill is considered to be to cater to the sensitivities of British Muslims, and many commentators (such as Charles Moore) make the obvious connection with the situation in Denmark (see Feb. 1). Meanwhile, violent threats continue against Danes, cartoonists, and liberal-minded Europeans generally. And some 500 lawyers in Jeddah, Saudi Arabia, are supporting a project “to take legal action against” those who insult or demean the founder of their religion with one goal being “to enact laws that would incriminate abuse of religions and prophets in all countries,” as a spokesman puts it. (P.K. Abdul Ghafour & Abdul Maqsood Mirza, “Lawyers Vow Legal Action in Cartoons Row”, Arab News, Feb. 4). Michelle Malkin has much, much more (plus this).

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* * *

America differs from all other Western democracies (indeed, from virtually all nations of any sort) in its refusal to recognize the principle that the losing side in litigation should contribute toward “making whole” its prevailing opponent.  It’s long past time this country joined the world in adopting that principle; unfortunately, any steps toward doing so must contend with deeply entrenched resistance from the organized bar, which likes the system the way it is.

Overlawyered.com’s editor wrote an account in Reason, June 1995, aimed at explaining how loser-pays works in practice and dispelling some of the more common misconceptions about the device.  He also testified before Congress when the issue came up that year as part of the “Contract with America”.  Not online, unfortunately, are most of the relevant sections from The Litigation Explosion, which argues at length for the loser-pays idea, especially chapter 15, “Strict Liability for Lawyering”.

As other countries recognize, the arguments in support of the indemnity principle are overwhelming.  They include basic fairness, compensation of the victimized opponent, deterrence of tactical or poorly founded claims and legal maneuvers, and the provision of incentives for accepting reasonable settlements.  Sad to say, the American bar, though loud in proclaiming that every other industry and profession should be made to pay for its mistakes, changes its mind in this one area, demanding an across-the-board charitable immunity for its own lucrative industry of suing people. 

Also in 1995, Rep. Chris Cox (R-Calif.) published a succinct defense of the loser-pays principle, terming it the “full recovery rule” and pointing out that it would improve the position of a large number of plaintiffs with meritorious claims who currently go undercompensated because of the need to pay their lawyers large sums which cannot be recovered from the opponent. 

Author James Fallows of The Atlantic called the idea “overdue” and included it in his list of “Ten New Year’s Resolutions for America” (National Public Radio). 

The principle in other countries:

The leading British scholar of torts and accident law, the distinguished Patrick Atiyah of Oxford, observes that “the reality is that the accident victim with a reasonable case should be able to find a lawyer with equal ease in England and America.” (1987 Duke L.J. 1002, 1017; cited in Olson House testimony above) 

In the United Kingdom, as throughout Europe, the general loser-pays principle enjoys strong support among social democrats and conservatives alike.  In this debate excerpt from Britain’s House of Lords (January 21, 1999), in response to an objection that applying loser-pays in cases before employment tribunals might discourage workers from bringing claims against their employers, Lord Irvine, who serves as Lord Chancellor in the Labour government of Prime Minister Tony Blair, responds that “It can be argued… that one should discourage weak cases. Very often applicants bring weak cases before employment tribunals inspired by animus against their employers arising out of their dismissal.  If the effect of [a costs] rule were to deter weak claims and prevent employers being vexed by them there is a highly respectable argument in favour of that change.”

In Australia, according to this official report, “The general rule on costs is that costs follow the event (i.e. that the party in whose favour the issue is decided normally has his or her costs met by the unsuccessful party). It should be noted, however, that an award of costs is at the discretion of the court and in exercising the discretion the court may take into account the conduct of the parties and the manner in which the case was litigated.” 

Sometimes it is argued that loser-pays principles should be suspended in cases where litigation is claimed to have gone on in the public interest, as a test case, or to procure a change in established law.  While some loser-pays jurisdictions suspend the principle for what are viewed as true “cases of first impression” where there is no established law, most are skeptical about applying any exemption more liberally, as one sees in this 1996 case from Alberta, Canada. (Update Nov. 20, 2004: on appeal to the Supreme Court of Canada, the Alberta plaintiff in 1998 won his case on the merits (with an award of costs), thus presumably escaping any need to pay costs arising from his “case of first impression” loss at the earlier stage).

Given the pervasive influence of U.S. ways of doing things, and the extraordinary success (by some standards) of the American bar, it is not surprising that a definite though minority bloc of practitioners and academics has arisen outside the U.S., particularly in English-speaking countries, that is favorably disposed toward the American rule on costs.  The rationale offered by such advocates can itself be interesting, as when James Eck, an Australian professor who teaches at Washburn University in Nebraska, calls for his country to emulate the American fee rule on the grounds that “An Increase in Litigation Would Be Good for Australia“.  Prof. Eck writes that insurance rates are “artificially low” in Australia and foresees that abandoning loser-pays would engender an increase in litigation that would result in “an increase in the number of persons employed by the insurance industry,” which would, he believes, redound to the benefit of that country’s economy — a sentiment many will view as open to doubt.

Some jurisdictions have over the years weakened loser-pays provisions in ways that create important exceptions in a minority of cases. Perhaps the best-known of these rules, in Britain, denies fee recovery to prevailing defendants when they are sued by plaintiffs assisted by official legal-aid funds, a policy that many spokesmen for defendants have bitterly denounced as unfair and inconsistent with national tradition.  Even in these cases, it seems, defendants benefit from the distinctive British pay-into-court system (see below).   More recently, Britain has excluded an even wider class of injury claims from the rule. Although Ontario has somewhat watered down its loser-pays provisions for class actions (R. Bruce Smith of Smith Lyons, link now dead), they are still far superior to the American rules in discouraging ill-founded litigation.

Special wrinkles: paying into court, legal expenses insurance

Two institutional features of the landscape in loser-pays countries deserve special mention: the complex of questions surrounding issue-splitting and offers of settlement, and the availability of legal expenses insurance.

It is common for litigation to involve multiple issues, some of which are resolved in favor of one party, others in favor of its opponent, or for a plaintiff to be vindicated as to liability but for his claim of damages to be upheld only in part. Most loser-pays systems explicitly empower the judge or other magistrate to split fees in these cases, usually with the objective of allocating each element of cost to the party whose position was defeated.  Thus it is quite conceivable for a plaintiff to establish liability but for the fee award mostly to favor the defendant on the grounds that most of the cost of the litigation was spent arguing over issues on which the defendant prevailed.  A different way of approaching the same general problem is practiced in England, where defendants can offer to “pay into court” a proffered settlement and are entitled to fees if a plaintiff turns it down and does less well at trial.  Some countries combine elements of the two systems. 

Just as liability insurance covers the risks of being a defendant in litigation, so nations with loser-pays have developed markets for what is called legal expenses insurance, which helps manage the financial risks of becoming a plaintiff including the chance of becoming liable for costs in the event of a courtroom loss.  (This chance is in fact quite remote, since abroad, as in the United States, well over 90 percent of cases settle out of court before a final legal resolution; the primary influence of loser-pays is in the “shadow” it casts on the size and timing of this settlement.) Legal expenses insurance is typically available at quite modest cost, often as an added rider to homeowners’ or automobile policies.  Its cost is modest in part because it can benefit from a self-financing fund: if the insurer correctly analyzes which cases brought in by its policyholder plaintiffs are worthy of being pressed, it will benefit from fee shifts paid by the defendants against whom it finances suits. 

A series of country-by-country reports from the European Commission indicate that legal expenses insurance is “almost universal in Denmark” “very common in Norway“, and “widely available in the Netherlands“, while “Germany has the largest LEI market of any EU country“. 

In Britain, the Blair government has proposed to increase the role played by legal expense insurance and in particular a variant known as “after-the-event” insurance (report by Daphne Loebl for solicitors Wilde Sapte, link now dead). Websites put up by plaintiff’s-oriented solicitors’ firms in Nottingham and East Anglia explain more about how the English system works. 

Loser-pays in this country:

The state of Alaska has followed a loser-pays system for decades. Rule 82 of the Alaska Rules of Civil Procedure (requires scrolling down), provides a modest degree of fee-shifting, and operates in tandem with Rule 68 (requires scrolling down), which provides for fee awards hinged on offers of settlement. The Alaska Judicial Council discusses the operation of the rules in this 1995 report.

In the mid-1990s, both Oregon and Oklahoma enacted statutes that applied loser-pays principles to significant categories of litigation in their state courts. These laws are discussed in the Olson/Bernstein Maryland Law Review article cited below. 

Although no national organization has arisen to promote it, loser-pays continues to be a popular reform idea in many states.  In South Carolina, 57 House colleagues joined state representative Gresham Barrett in sponsoring a loser-pays measure (South Carolina Policy Council). Loser-pays measures have been introduced in Arizona (H.B. 2230), and, with respect to specialized statutory areas, such states as Colorado (farm nuisance suits, S.B. 43, Rep. Ken Chlouber). 

Many states have also introduced or strengthened offer-of-settlement systems in which at least some costs are available to parties when the other side turns down a proffered settlement and then does worse at trial.  Frequently these laws are hampered in their effect because they exclude what are the largest categories of cost, attorneys’ and expert witnesses’ fees.  Attorney Geoffrey L. Bryan picks through some of the complexities and exceptions in Section 998 of California’s Code of Civil Procedure, a provision of this sort. 

One particularly promising field for the extension of loser-pays principles is in the realm of statutes governing disputes between business entities.  For example, the Federal Communications Commission recently suggested a loser-pays mechanism for disputes between providers of satellite service over customers (February 24, 1999 testimony of Deborah Lathen) 

Loser-pays is the subject of a large theoretical literature generated by economists and other model-builders who mostly have found themselves at a loss to predict from their models whether litigation will be on average better restrained in the one type of system or in the other.  Professors Thomas D. Rowe, Jr. (Duke) and David A. Anderson (Centre College) ran simulations of the effect of various offer-of-settlement rules on lawyers’ behavior in settling cases. (”Empirical Research on Offer of Settlement Devices”, 1996; reprinted by Texas Association of Mediators, link now dead). 

For further reading: Walter Olson and David Bernstein, “Loser-Pays: Where Next?”, Maryland Law Review, 1996 (55 Md. L. Rev. 1161).

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The Christian Science Monitor says a zero tolerance policy may work best if it “allows principals some leeway to define what ‘zero’ is”, which might seem to retreat from the original concept, no? (Peter Grier and Gail Russell Chaddock, “Schools get tough as threats continue”, Nov. 5.) And we recently stumbled across a site entitled “Zero Tolerance = Zero Common Sense = Zero Justice“, which hasn’t been updated much lately but has scores of links and clips from the period 1996-98 documenting the trouble kids were getting into when found in the possession of lunchbox bread knives, water pistols, cough drops, and so on. (H. Churchyard site).

December 27-28 – “Bug lawyers” prosper. The Montgomery, Ala. law firm of Crosslin, Slaten & O’Connor has found a happy niche representing exterminating companies. (Its website: www.buglaw.com.) Several of its attorneys have themselves become certified pest control operators, and the firm has its own plane, which it dubs Bug One, to reach clients quickly. “Reflecting the general trend toward litigiousness, pest control operators are being sued more.” (Richenya A. Shepherd, “‘Bug Lawyers’ Invade the South”, National Law Journal, Dec. 13).

December 27-28 – You shoulda flunked me! Derek Boult, a former student at Murrietta Valley High School near Riverside, California, has sued the school and his football coach, saying he was improperly given passing grades and promotions as part of a policy of according favorable treatment to student athletes. The lawsuit, which also names the school’s former football coach, charges that overly lenient grading deprived Boult of the right to an education as provided by the state constitution. Eventually Boult proved unable to keep up the requisite minimum 1.5 grade point average, had to switch to a remedial school and was unable to graduate with his class. His attorney, Anthony D. Weber, of Palm Desert, charges that the school should have given him failing grades at an earlier point and taken him off the team. “He deserved to have bad grades,” he said. “He didn’t deserve to play football.” (Daniel G. Jennings, “Athlete Sues School for Letting Him Pass”, San Francisco Daily Journal, Oct. 25 — not online)

December 27-28 – “Few Settlement Dollars Used for Tobacco Control”. The year’s most durable shock-the-naive story: states are spending only a minor share of their enormous tobacco-settlement booty on causes dear to anti-smoking activists, such as those billboards and TV ads that hector smokers and vilify cigarette executives. “Of the 23 states that have decided how to spend their money, the majority appear to view the dollars primarily as a hefty new revenue source to be spent on whatever the state needs.” How many serious observers imagined it would be otherwise? In Rhode Island, putatively in the vanguard of children’s-health activism as the first state to sue lead paint makers, “teen smoking has increased from 21% in 1993 to 34% in 1999,” if the numbers from a state Health Department survey are to be believed. (Alissa Rubin, “Few Settlement Dollars Used for Tobacco Control”, Los Angeles Times, Dec. 25).

December 27-28 – 150,000 pages served on Overlawyered.com. Thanks for your support!

December 23-26 – Christmas lawyer humor. A selection culled from around the web:

“Merry Christmas from the Legal Department” (Yuletide wishes consisting entirely of disclaimers):

Though we, the “Greetor,” wish you well
In our Holiday Entreaty,
We limit all your claims, Dear Friend
(Hereinafter called the “Greetee”).

We wish you dreams of Sugar Plums
And dancing Christmas Lights,
But if these Fancies come to Naught
You have no Vested Rights… ” (more)

– LaughNet; attributed to Edward G. McManus.

– “Joys of the season for divorce lawyers” by Virginia attorney Richard Crouch. Notwithstanding the puckish tone of the above, the piece goes on to offer serious and sensible advice on how to avoid letting holiday strains turn someone you love into a potential client of the divorce biz.

“A lawyer’s Christmas” (same idea): “…Hosiery was meticulously suspended from the forward edge of the woodburning caloric apparatus… ” (more) (TnT Web Design site)

Waite, Schneider, Bayless & Chesley, the Cincinnati firm of famed master-of-disaster Stanley Chesley, charged that Microsoft’s actions “prevent[ed] development of a Windows 95 version of Netscape Navigator”, but one was introduced years ago; a lawyer with the firm explains that by “prevent” he meant “delay”. “It seems like all of these cases were written under the influence of an active pharmaceutical ingredient,” Microsoft spokesman Mark Murray told the Post. “The only people who are going to benefit from these cases are lawyers.” (David Segal, “In race to sue Microsoft, some trip”, Washington Post, Dec. 21 — full story)

December 23-26 – Jovanovic conviction overturned. A New York appeals court has overturned the kidnapping and sex abuse conviction of Columbia University graduate student Oliver Jovanovic. (”New York appeals court throws out conviction of ‘Cybersex’ defendant”, AP/CNN, Dec. 22). This site briefly commented at the end of July on the unfairness of Jovanovic’s trial, at which the judge, applying New York’s “rape shield” statute, forbade the defendant’s lawyers to introduce as evidence emails from the accuser which cast doubt on her story; for more details, see coverage in the New York Post, by Post columnist Steve Dunleavy, and by Brian and Elisabeth Carnell for the Women’s Freedom Network. Jovanovic has served 20 months of a 15-year sentence. Update: all remaining charges dropped against Jovanovic on Nov. 1, 2001 (see Jan. 9-10, 2002)

December 23-26 – New subpage on Overlawyered.com: legal ethics in crisis. Okay, we admit that if we pulled together everything on this site raising questions of legal ethics we’d have a subpage too big to use. So we’ve just gathered here links and commentaries on a range of topics that includes witness-coaching, ethical billing practices, civility, conflicts of interest, champerty and the role of contingent fees, “pay for play”, discipline of errant lawyers by the bar, client protection, judicial ethics, and other matters likely to come up in a course on professional responsibility.

December 22 – A question of t-shirt velocity. On December 7 we summarized the “flying t-shirt” suit filed by Stewart Gregory of Cincinnati against NBC’s “Tonight Show” and host Jay Leno, alleging he was “battered” and “forcefully struck” when the warm-up comic who preceded Leno on the show blasted a freebie t-shirt into the audience with an air gun. The next day the AP ran a short item on the case, which added a new detail or two (earlier reports had Gregory alleging that he was hit in the face, the new one says eye) and quoted the 56-year-old plaintiff: “It’s not frivolous when you get hit with a hard object traveling 800 feet per second.” (”‘Tonight’ Audience Member Sues”, AP/Washington Post, Dec. 8). Reader Bob Kanyok from St. Louis writes: “800 feet per second is 545 miles per hour, the speed of a jetliner. A ‘hard object’ the size of a t-shirt at 800 feet per second would have done a lot more than injure his eye, it would have torn his head off. Odd how no one else has picked up on this. Are all the reporters out there innumerate?”

December 22 – Popular continuing-legal-education course: “How to Hammer Allstate”. Seminars with that title have been playing to overflow crowds of trial lawyers around the country. The big insurance company has angered plaintiff’s attorneys by taking a hard line in defending claims filed against its auto policyholders, especially where vehicle damage is minimal and the claim is of soft-tissue injury. “There’s a sense of righteous indignation,” says Robert I. Reardon Jr., who organized one such seminar for the Connecticut Trial Lawyers Association which drew 320 lawyers. Allstate lawyer William Vainisi agrees that the company has been mounting a tough defense effort but says it is directed against “inflated demands and built-up medicals”. (Mark Ballard, “Hot CLE Class: Hammering Allstate”, National Law Journal, Dec. 10). The company has also infuriated attorneys in recent years by contacting persons who have been involved in crashes with its policyholders and urging them to consider settling the claim without a lawyer, a step that its opponents charge violates rules against the unauthorized practice of law. (Danielle Rodier, “Allstate Sheds UPL Claim, Still Faces Consumer Protection Suit”, Legal Intelligencer, April 14; ArkTLA; W.V. bar (link now dead); Phila. Trial Lawyers Assn.; NYSTLA; Conn.; Insure.com). More: Apr. 18, 2000.

December 22 – Pay us for this service. Dr. Xavier J. Caro was stunned recently when lawyers for his wife Cora, from whom he is seeking a divorce, demanded $550,000 from him as a “community loan” as a prepayment of costs for her forthcoming criminal defense. Cora Caro is in the Ventura County, Calif. jail on charges that she murdered three of the couple’s four sons, ages 5, 8 and 11, on Nov. 22 before turning the gun on herself (she survived). The demand letter from Agoura Hills attorney Rand E. Pinsky “lists $600,000 to $800,000 as the equity value of the couple’s Presilla Road home as well as investments and properties they own”, according to the L.A. Times. “The normal procedure in a criminal matter is that defense costs are prepaid,” Pinsky said. Dr. Caro has countersued his wife. “Doctor Files Wrongful Death Suit Against Wife”, L.A. Times, Dec. 16).

December 22 – Tobacco fee fight looms in Mass. Massachusetts Attorney General Thomas F. Reilly is vowing to fight “with every resource we have” to prevent the Boston law firm of Brown Rudnick Freed & Gesmer from collecting roughly $500 million, which the firm says is its share of a $2 billion contingent fee owed by the state over 25 years to five firms that represented it in the tobacco-Medicaid litigation. Reilly says the Brown firm has already been awarded $178 million for the representation: “At some point, enough is enough.” (Frank Phillips, “Reilly to fight claim of lawyers”, Boston Globe, Dec. 20).

December 21 – Accessible websites no snap. It’s hard to think of a better way to slow the growth of the Net than to menace web providers with exposure to liability for mounting or running ordinary, garden-variety websites or online services. Yet under prevailing interpretations of the Americans with Disabilities Act, both large and small e-tailers, online publishers, and applications providers may be open to damage suits on the grounds that their offerings are not accessible (as the term goes) to disabled users. Last month the National Federation of the Blind filed a lawsuit against America Online, charging that it has not moved with sufficient vigor to make its services fully available to sightless users (”Lawsuit: AOL Ignores Blind”, Reuters/Wired.com, Nov. 5, link now dead). AOL is a big business, of course, but there’s no reason to think that accessibility obligations under the ADA do not extend all the way down to many “mom-and-pop” ISPs, applications providers, online magazines and journals, e-stores, and so forth.

What exactly, does it mean for a site or service to be accessible? Disability advocates have declared many commonly encountered features in web design to be unacceptable barriers to one or another group of users. Among them are displays that depend on color to convey information, common methods of employing tables and graphics to assist in page layout, navigational designs that respond to mouse but not keyboard commands, and streaming audio when not accompanied by text translation. (Adam Clayton Powell III, “Is Your Site Accessible?”, Reason, July 1999; W3C, Web Accessibility Initiative). Web operators who ignore the advice of experts in this field must be seen as setting themselves up at some point for potential costly lawsuits. Yet the alternative of giving top priority to ADA compliance is hardly attractive either, since it might involve tearing down existing nonconforming webpages pending future redesign, refusing to employ developers who haven’t gone through special courses aimed at helping unlearn common page-construction habits, and abandoning decentralized publishing models in which many different employees, group members or customers are permitted to erect free-form content on a site. Almost incidentally, another effect would be to involve publishers of all shapes and sizes — First Amendment or no — in ongoing, intimate negotiations with government agencies and private pressure groups over questions of what they will and will not be allowed to publish.

But not to worry, say many disabled advocates — “Bobby” will save the day! Available at the Center for Applied Special Technology site, “Bobby” is a free program with sponsorship from leading businesses that will review any website and automatically diagnose where it needs to be fixed to provide handicap accessibility. Sounds easy enough, right? To be sure, the wave of favorable publicity about Bobby this summer revealed the embarrassing fact that many of the federal government’s own major websites, including the White House site itself, were not Bobby-compliant — this even though the U.S. Justice Department was rattling its sword to call private companies’ attention to the issue of high-tech accessibility. (To see the ways in which this site falls short on Bobby, click here; to see how badly the White House still flunks, here).

Given that pretty much everyone’s website seems to be out of compliance, ADA or no ADA, it was with much interest that we noticed the splashy, full-page ads recently announcing the launch of a major new website, evidently with substantial financial backing behind it, that would be specifically geared to the needs of disabled users. The site, called WeMedia, is affiliated with We magazine and aims to create an online community of disabled users for purposes of both service and advocacy. Finally, a chance to see how the experts themselves deal with the accessibility problem! You can therefore imagine how crestfallen we were to find the following notice blazoned on the site’s front page: “Currently, We Media’s site is not 100% ‘Bobby’ compliant. However, we are working very hard over the next few weeks to make sure that it becomes so.” [Update: a check on 2/7/00 finds that WeMedia now displays a Bobby approval button.]

December 21 – “Lawyers stealing less, clients say.” Now there’s a jolly, upbeat headline for you! “For the first time in its 16-year history”, the fund that reimburses victimized clients when Empire State attorneys commit theft or fraud is experiencing a sharp drop in payouts, according to the New York Law Journal. Officials say they believe the drop in client-cheating is genuine and credit, in part, two major reforms: banks are now directed to notify the client-protection fund when lawyers bounce checks from their escrow account, and insurance companies that pay to settle personal-injury claims are now directed to notify the claimants themselves about the payments rather than rely on their lawyers to tell them. (John Caher, “Lawyers stealing less, clients say”, New York Law Journal, Nov. 19).

December 21 – Oops! Didn’t mean nothing by that, ma’am. At D. McRae Elementary School in Fort Worth, Tex., counselor Seth Shaw got in trouble, according to his account, after he said “Hello, good looking” to a female newcomer he encountered in the office. She turned out to be an outside consultant there to conduct a training workshop on sexual harassment. Officials asked Shaw, a nine-year veteran, to resign over the incident, but school trustees settled for a 20-day unpaid suspension. (Martha Deller, “Fort Worth school counselor assessed 20-day unpaid suspension”, Fort Worth Star-Telegram, Dec. 17).

December 20 – Pack your toothbrush, son. Five years ago young law clerk Richard Poff decided to blow the whistle on questionable practices he’d seen firsthand at his employer, the influential Birmingham, Ala. plaintiff’s firm of Roden, Hayes & Carter. The firm, he said, had been paying hospital and police employees for leads in injury cases, and charging gambling and golf junkets, Royal Caribbean cruises and liquor store bills against client accounts. What happened next? All three name partners drew bar suspensions and pled to misdemeanors after arguing, in part, that the expense-charging had not affected clients’ eventual take from their cases.

So was Poff given a hero’s thanks by a local legal profession grateful for his help in cleaning itself up? Not exactly: he became virtually unemployable, was hit with a still-pending $1 million default judgment for libeling his old boss, got thrown in Birmingham jail for three days, and was ordered sent for psychiatric examination. “It seemed as though every judge in town was warning him to pack a toothbrush.” For a while, a judge even ordered the state’s press not to report on the proceedings. The state’s Supreme Court has yet to rule in the affair, but the lesson’s been made crystal clear for anyone who might be tempted to emulate Poff: don’t try to fight the legal fraternity. (Michael Goldhaber, “Crazy in Alabama”, National Law Journal, Dec. 15).

December 20 – Cute names for laws: enough, already. One example of the triumph of sentiment over dispassion in contemporary law is the naming of new criminal statutes after the victims they’re meant to avenge. Thus we got the “Megan’s Law” sex offender registries, followed more recently in New York by “Buster’s Law”, a felony animal abuse statute named after a murdered cat. We’re not alone in our dislike for this practice: Albany lawyer Terence Kindlon says you shouldn’t “give cute names to law…Can you see the words ‘Buster’s Law’ coming out of the mouth of Oliver Wendell Holmes?” Currently defending a Rensselaer Polytechnic student who faces a possible two-year jail sentence for breaking his dog’s leg during what he says was an attempt at discipline, Kindlon believes the law’s headline-friendly nomenclature is presenting him with an uphill battle. “It is sort of a celebrity law, it is a law with a built-in press agent.” (Joel Stashenko, “Attorney questions practice of naming laws after victims”, AP/Schenectady Gazette, Dec. 19)

December 20 – Those Bronx juries. “In civil cases, they are extraordinarily generous. ‘Let’s face it: the Bronx civil jury is the greatest tool of wealth redistribution since the Red Army,’ said attorney Ron Kuby, who won a $43 million civil judgment against subway gunman Bernie Goetz from six Bronxites.” (”Bronx juries: all things to all people”, AP/Newsday, Dec. 18).

December 20 – Stroller-parking: then and now. Last Tuesday a Manhattan jury rejected a Danish woman’s claim “that New York City police officers had falsely arrested her outside an East Village restaurant after she left her baby daughter in a stroller on the sidewalk to go inside for a drink”. It did, however, award Anette Sorensen $6,400 in compensatory damages for the cops’ failure to inform her that she had the right to summon help from the Danish consulate, plus $60,000 in punitive damages — an outcome that, perhaps oddly, both sides in the case appear to view as vindication for the police. In today’s New York Times, Sven Larson writes a letter from Hvidovre, Denmark, to dispute Sorensen’s claim that she was only following the practice in her home country: “While many [in Denmark] leave carriages outside shops for a couple of minutes, no one parks a baby outside a restaurant after 6 p.m. for as much as an hour.” The difference, he says, is that in Copenhagen “the police would have asked her kindly to bring the carriage inside and nothing more would have happened”. (Benjamin Weiser, “Damages but No False Arrest in Stroller Case”, New York Times, Dec. 15; letter, Dec. 20). By coincidence, we happened to be visiting James Lileks’s Institute of Official Cheer, an online archive of vintage ad images, and found this 1950 A&P grocery store ad from Life treating it as a selling point for the market that so many mothers left their baby prams out front.

December 20 – News flash: Bill Clinton endorses loser-pays! He now thinks parties charged with wrongdoing should be able to collect for the burdensome cost of their legal defense, if they’ve prevailed in the end. Whoops, scratch that…turns out Bill wants his legal fees covered re the independent counsel investigation, but everyone else who gets dragged into court and eventually prevails can just go fish. (Charles Babington, “Clinton May Ask U.S. to Pay Legal Fees”, Washington Post, Dec. 18)

December 20 – Welcome Robot Wisdom readers. We got a mention yesterday on Jorn Barger’s weblog, one of the earliest, most eclectic and most widely followed examples of the genre.

December 17-19 – Splitsville, N.Y. Cover story in last week’s New York on the city’s big-league divorce biz arrives at a consensus view of the broad legal trends (”equitable distribution” keeps getting messier and more expensive, “lawyers have to play constant catch-up as new, intangible assets are added to the marital-property pot”, judges have vast discretion so it’s hard to predict what they’ll do), celebrity tactics (on the oft-used gambit of threatening to send dirt to the tabloids, the “bullet of embarrassment only has cash value when it’s in the chamber”), the cushy, cash-vacuuming role of minor players (asset evaluators and guardians of children’s interests, appointed by the court and paid out of the marital estate, can “make a fortune”, agrees the city’s top judge) and social strain (guest at East Side dinner party bursts into tears on finding she’s been seated beside lawyer who’d represented her husband, but it wasn’t easy to re-seat him: “At a table for ten,” he explains, “I’d done five divorces”).

Bitter clients? No trouble finding those: “Being the best divorce lawyer in New York is like being the best devil in Hell,” says publisher Judith Regan, whose own split has cost more than $1 million over seven years. “It means you’re avaricious, conniving, and vicious….Divorce law is not about justice or fairness or protecting anyone’s rights or what’s best for a child; it is big business.” “The first thing they get is a net-worth statement,” says another unhappy customer, plastic surgeon Ronald Linder. “Then they make sure they get your total net worth.” Lawyers counter that unreasonable clients often spurn settlement and insist on fighting every issue, though attorney William Beslow notes that “there’s a built-in incentive to keep litigation going by either purposely misadvising clients or telling them what they want to hear, which solidifies the relationship but ensures conflict”.

Attorney Raoul Felder, as is his wont, dispenses extreme quote. Of charges that threats of publicity constitute extortion: “Isn’t every lawsuit a form of legal extortion? The law is constructed that way. Pay me or go to court.” According to New York, a “low point” in Felder’s career came when he “[p]ublicly declared Robin Givens wanted nothing from Mike Tyson one day after privately demanding an $8 million settlement.” “On one level, it’s sleazy,” he says. “On another, I’m not robbing supermarkets.” (Michael Gross, “Trouble in Splitsville”, New York, Dec. 13).

December 17-19 – Truth in recruitment? An Essex County, N.J. jury yesterday awarded more than $10 million to former New York Giant football player Philip McConkey on the grounds that he had been lied to when he was recruited for a management job at an insurance brokerage which was in talks to sell itself to a larger company. McConkey said he would never have taken a job at Alexander & Alexander in May 1996 had he realized the firm would be bought in December of that year by insurance company Aon Corp. The job offered base pay and benefits of $352,000 a year, with a chance of commissions of $3 million to $5 million a year. The following March he was fired from the job, he said. Frank G. Zarb, chairman of A&A at the time, testified that when he interviewed McConkey he’d already engaged in preliminary talks with Aon, but considered A&A’s management as the side that would come out on top if the two companies were combined.

The company also pointed to McConkey’s employment contract, which it said demonstrated that he was an “at-will” employee who could be dismissed for any reason. In vain: the jury voted the former wide receiver and Navy helicopter pilot $3 million for lost income, $2 million for emotional distress, and $5 million in punitive damages. Zarb himself, however, “was dismissed as a defendant before the trial started”; he is now chairman of the National Association of Securities Dealers, which runs the NASDAQ stock market. The case may represent a breakthrough for employment plaintiff’s attorneys who have for years been pushing “recruitment fraud” theories of recovery. (Jeffrey Gold, “Jury Finds NASD Chairman Lied”, AP/Excite, Dec. 16)

December 17-19 – Transit shutdown. A jury has awarded $50 million to Shareif Hall, who lost a foot in an escalator accident on the Philadelphia subway system, and $1 million to his mother, Daneen. Robert T. Wooten, a board member of the Southeastern Pennsylvania Transportation Authority (SEPTA), called the jury verdict a “very, very serious financial blow” to the finances of the transit agency, and predicted service cuts and fare increases if the award or any substantial fraction of it is upheld on appeal.

According to the boy’s lawyer, Thomas Kline, the jury was angered when memos emerged from the transit agency that stated that the escalators were in poor and deteriorating condition. State law limits personal-injury awards against public entities, but Kline successfully recharacterized the claim as in part one of deprivation of the boy’s civil rights; $25 million of the jury’s award was to compensate the boy for that purpose, and therefore is not subject to the limit. (”Boy awarded $50 million in Pennsylvania escalator accident”, AP/CNN, Dec. 15, link now dead; Claudia N. Ginanni, “Documents Uncovered Mid-Trial Fuel $51 Million Injury Verdict v. SEPTA”, PaLawNet, Dec. 15 (subscription))

Update: After the verdict, Judge Frederica Massiah-Jackson expressed anger over SEPTA’s mishandling of physical evidence and failure to provide relevant documents requested by the plaintiffs. The agency settled the case for $7.4 million and pledged to improve both its escalators and its litigation behavior in the future. (Claudia Ginanni, “Judge Fines SEPTA $1 Million Authority; Held in Contempt for Withholding Evidence”, The Legal Intelligencer, Dec. 23; “SEPTA Settles Escalator Suit for $7.4 Million”, Jan. 6) (see Jan. 29-30 commentary).

December 17-19 – “New Mexico county is ordered to use non-English-speaking jurors”. A judge ruled this fall “that potential jurors in Dona Ana County cannot be eliminated simply because they do not speak English”. Now officials are wrestling with questions like: should each juror get his own translator? How will the presence of translators in the jury room influence deliberations? What if a juror facing a language barrier asks to be excused from sitting on a case? Court-paid translators can expect to get a workout, given that all the testimony, documents and exhibits, lawyers’ arguments and judges’ instructions in cases will commonly be in English. And Spanish is not the only language that must be accommodated; one prospective juror spoke a particular Indian dialect the translation of which would have required the services of a specialty translator at $180 an hour, had the juror not been excused for health reasons. (AP/FindLaw, Dec. 13)

December 17-19 – Most unsettling thing we’ve heard about Canada in a while. We knew political correctness held great sway in the public life of our northern neighbor, but didn’t realize the following: “Canada’s most powerful tool against politically incorrect speech is its hate speech code, which prohibits any statement that is ‘likely to expose a person or group of persons to hatred or contempt’ because of ‘race, color, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age.’ Prosecutors are not required to show proof of malicious intent or actual harm to win convictions in hate speech cases, and courts in some jurisdictions have ruled that it does not matter whether the statements are truthful.” (Steven Pearlstein, “In Canada, Free Speech Has Its Restrictions: Government Limits Discourse That Some May Find Offensive”, Washington Post, Dec. 12)

December 16 – Got milk? Get sued. Physicians Committee for Responsible Medicine, a veggie-oriented group of litigious bent that claims 5,000 physician supporters, last figured in these columns on Sept. 25 when it urged the federal government to file a tobacco-style lawsuit against “Big Meat”. Now comes word that PCRM expects Massachusetts state senator Dianne Wilkerson to join it in a lawsuit it has organized charging that the federal government is being racist by distributing milk to schoolchildren. The reasoning? Black children are more likely than white children to display lactose intolerance, a condition that prevents them from digesting one of the major nutrients in milk. Wilkerson was also concerned to learn that a large cereal manufacturer was sending free cereal to the Boston schools, thus encouraging more milk consumption. “I want us to become health-food conscious, lactose-free public schools,” Wilkerson told the Boston Globe. “There are other options, like calcium-fortified juice.” (”Got milk? Minority schoolchildren do, and maybe they shouldn’t”, AP/Boston Globe, Dec. 13, link now dead (via Lucianne.com))

December 16 – GM verdict roundup. Marion Blakey, who used to run the National Highway Traffic Safety Administration, finds it remarkable that verdicts like this summer’s Anderson v. General Motors (see our July 10, August 27 commentaries) allow lawyers to shift legal responsibility for accidents away from drunk drivers to automakers with their deeper pockets, at the eventual expense of car buyers. (”Drunken drivers make mockery of justice”, Detroit News, Dec. 9). The Los Angeles jury’s initial award of $4.9 billion, since reduced by the judge to a putatively more reasonable $1.2 billion, “surpasses the combined gross domestic product of Afghanistan and Albania”, writes op-ed contributor Jim Lafferty (”Two astronomical lawsuit awards may be start of dangerous trend”, San Diego Union-Tribune, Nov. 14). The Federalist Society has mounted a series of panel discussions around the country on the lessons of the Anderson case, and has posted transcripts of the proceedings on its website. And on Monday the Christian Science Monitor ran an op-ed point-counterpoint about the case between R. David Pittle, technical director of the remorselessly pro-litigation Consumers Union, and classic-car auctioneer Mitch Silver. (R. David Pittle, “Fix car design before lawsuit“, and Mitch Silver, “Create wise policy, not crash-proof cars“, Dec. 13). Update Aug. 3, 2003: case settled on undisclosed terms.

December 16 – Gotta regulate ‘em all. Quebec Language Minister Louise Beaudoin has threatened legal action against the makers of Pokémon trading cards for allowing them to be sold in the province without French-language packaging or instruction. Ms. Beaudoin said a French version of the popular cards is sold in France itself, Belgium and Switzerland, but is not available in la belle province despite local laws mandating use of the language: “I don’t understand and I can’t accept it … we hope this ultimatum will result in our law being respected.” The cards’ manufacturer, Wizards of the Coast of Renton, Wash., says rights to sell the Japanese-origin cards are divvied up geographically, and that it has North America; it completed an English-language translation first, and now has finished work on a French version which it expects to have on sale in Quebec by February. (Sean Gordon, “Quebec minister demands French version of Pokemon”, National Post (reprinted from Montreal Gazette), Dec. 10) (earlier Pokémon coverage: Oct. 13, Oct. 1-3).

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