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Oh well, at least it’s not as intrusive as driving around their neighborhoods and interviewing their acquaintances:

[Bob] Marx, a personal injury attorney at The Law Offices of Robert Marx in Hilo, Hawaii, regularly hires a handwriting expert to help him select a jury.

“I feel like it’s a significant competitive edge,” he said. “It’s not 100 percent accurate, but if you know some history or a little bit more about a potential juror together with this analysis, it helps a whole lot more.”

Since the mid-1990s, Marx has paid an expert to analyze jurors’ handwriting for all of his big trials. The findings help paint a picture of the jurors and point out characteristics such as whether they are likely to be leaders or followers, if they are analytical or visual, or toward which side they are likely to be sympathetic.

Marx’s last three juries awarded a total of $31 million, and he said handwriting analysis helped him.

(Vesna Jaksic, “Looking for Clues in a Juror’s ‘John Hancock’”, National Law Journal, Feb. 27).

Readers who follow the phenomenon of ADA filing mills (Dec. 7, etc.) may recall the case of West Coast attorney Theodore Omholt, who has filed hundreds of legal complaints against businesses for violations (trivial or otherwise) of disabled-access laws, which he then settles for cash. In Honolulu, according to one news report, Omholt filed 574 lawsuits. (Carolyn Said, “Controversial disability rights lawyer”, San Francisco Chronicle, Apr. 21, 2002.) Omholt then refocused his practice on California where he sent out the following letter, quoted in my article three years ago in City Journal:

I am the attorney (age 48) who for the past three years has had the privilege to represent a small action group of six wonderful individuals who use wheelchairs age 37 to 66. . . . Their shopping at inaccessible stores in San Francisco and then filing lawsuits as clients of mine against those inaccessible stores nets them each an income which makes them financially independent. For each of them, the lack of funds which used to limit them to life’s bare necessities and which plagues so many disabled individuals today has become only an unpleasant memory from the past. As a reward for implementing the law and making stores more accessible for other disabled shoppers, group members now use their stream of income to eat out at good restaurants when they want to, buy new clothes and computers and televisions and gifts for family members, travel and take vacations wherever and whenever they want to go, and live a lifestyle they could only imagine prior to joining the group. . . . The group has room for a small number of additional members. Once that small number of additional members has been selected, the group will again close to new members.

Alas, even the most thoughtfully devised business plans sometimes meet with a hitch. Reader W.R. alerts us to this copy of Supreme Court minutes (PDF) from San Francisco, dated May 10 of last year, which at page 51 reports the following:

S143253 OMHOLT ON RESIGNATION — The voluntary resignation of TED OMHOLT, State Bar No. 92979, as a member of the State Bar of California is accepted without prejudice to further proceedings in any disciplinary proceeding pending against respondent should he hereafter seek reinstatement. It is ordered that he comply with rule 955 of the California Rules of Court and that he perform the acts specified in subdivisions (a) and (c) of that rule within 30 and 40 days, respectively, after the date this order is filed.* Costs are awarded to the State Bar. *(See Bus. and Prof. Code, §6126, subd. (c).)

It’s too bad the minutes aren’t more informative about the circumstances surrounding Mr. Omholt’s voluntary resignation from the California bar. Readers familiar with the details are welcome to illuminate matters.

UPDATE: Omholt writes to dispute the accuracy of certain details in the Honolulu account; seeing no reason to doubt his word, we have revised the post to omit those details.


February 5 Roundup

by Ted Frank on February 5, 2007

  • First Democratic earmark for trial lawyers. [Point of Law; Grace]
  • Philip Howard on the lack of trust in the American justice system. [Common Good/NY Sun]
  • Cooperman pleads guilty to Milberg Weiss kickbacks. Anonymous commenter at WSJ Law Blog: “Mr. Taylor of Zuckerman Spaeder contends that Mr. Cooperman’s statements “have never been credible.” Then why on God’s green earth did Milberg Weiss repeatedly use Mr. Cooperman as a plaintiff in the first instance for so many years if he was not credible? Is Mr. Vogel, another plaintiff whom Milberg Weiss repeatedly used for decades who also has pled guilty similarly not credible? Milberg Weiss certainly has a penchant for finding “not credible” plaintiffs for representing class interests.” [Point of Law; WSJ Law Blog]
  • Bone-screw litigation and informed consent claims. [Drug and Device Law Blog]
  • Dan Markel has a more theoretical look at the car-wash “forgiveness” case. [Prawfsblawg]
  • Getting rich on backdating (but not the way you think) [Ribstein]
  • Jury selection in San Francisco [Cal Biz Lit; see also NLJ]
  • Hawaii losing doctors; gov calls for reform; 86% of Hawaii med-mal claims without merit [The Honolulu Advertiser]
  • The miracle of joint and several liability: Police chase injuries put city on hook $4.5 million, because city held a 10% responsible for felon’s car accident. [The Olympian]
  • Judge Harry Hanna becomes star for his slap on the wrist to Chris Andreas, but, more jaw-dropping: Ninth Circuit Judge Bea defends the double-dipping lawyer. [Point of Law; Legal Pad; WSJ Law Blog photo of Andreas t-shirt]
  • The Guardian v. AEI. [Adler @ Volokh; Frum; Point of Law]

Learning to accept coconuts

by Walter Olson on November 27, 2006

From a New York Times article on the city of Los Angeles’s decision to curtail the planting of palm trees along public streets and parks, one reason being that the majestic plants have been known to drop bulky fronds on persons below:

“Hawaii has a lot of coconut tree liability problems because they fall on people’s heads,” he said. “But the people there have said, ‘That is something that we have to accept.’”

(Jennifer Steinhauer, “City Says Its Urban Jungle Has Little Room for Palms”, Nov. 26). See also Jun. 11 (similar, from Torquay, England). More on coconut liability, in both cases relating to the decorated Mardi Gras variety: Mar. 4, 2005 (thrown at parade spectators); Mar. 13-14, 2002 (copyright claim).

The American Bar Association, which is holding its annual meeting in Hawaii next week, has shied away from co-sponsoring the National Lawyers on Longboards Surfing Contest. “They were freaked out about the liability issue related to a surf contest, even though we had liability insurance and everything,” said Honolulu attorney Lea Hong, an organizer of the event. Instead, the Hawaii state bar and LexisNexis will be serving as sponsors. Hong says “participants have signed what she calls ‘a pretty serious liability waiver’” and the contest rules have been drafted with an eye to making them loophole-free given the nature of the contestants. The competition used to be called the Land Shark Contest, but Hong says “that seemed a little too negative”. (Stewart Yerton, “Liabilities scare lawyers’ group away from surf meet”, Honolulu Star-Bulletin, Jul. 26).

Now that litigators from the National Resources Defense Council have won a temporary restraining order from a federal judge under the terms of the National Environmental Policy Act, the U.S. Navy says it will employ less effective passive sonar, rather than active sonar, in exercises off Hawaii intended to simulate anti-submarine warfare. The NRDC complained that when the Department of Defense granted the Navy a temporary exemption from the Marine Mammals Protection Act for purposes of the exercises, it was trying to evade being sued. (” Whale lawsuit forces Navy to change sonar plan”, AP/CNN, Jul. 5). “The Navy, in a statement after the ruling, said sonar was ‘the only effective means we have to detect and quickly target hostile submarines and keep sea lanes open,’ and that sonar operators needed training at sea ‘to protect our nation’s ships, shores and allies.’…. The sonar use is meant to test whether quiet, diesel-powered submarines like those used by Iran, North Korea and China can be detected.” (Tony Perry, “Judge Temporarily Bars Navy From Using Sonar Said to Harm Whales”, Los Angeles Times, Jul. 4) “The Navy says it must practice hunting submarines near the Hawaiian islands because that’s the type of environment where it most likely will face an emerging threat of submarine warfare.” (AP/Houston Chronicle, Jul. 4)(& welcome readers from Michelle Malkin, who provides more background on the controversy).


Assumption of risk wins one in Hawaii: “A golfer may not be held liable for mistakenly hitting another golfer with an errant golf ball, the Hawaii Supreme Court ruled.” Ryan Yoneda sued after being hit in the left eye by Andrew Tom’s wayward ball at Mililani Golf Course, but “Chief Justice Ronald Moon wrote Yoneda assumed the risk of the injury when he played golf.” However, the court did allow a lawsuit to proceed against the course owner on grounds of negligent design. (AP/San Francisco Chronicle, May 16; Ken Kobayashi, “Golf at your own risk, court rules”, Honolulu Advertiser, May 15).


Over-riding the Governor’s veto, the Kansas legislature has enacted a “Shall Issue” law for issuing licenses to carry a concealed handgun for lawful protection. Before, Kansas was one of only four states without any provision for issuing concealed handgun licenses. One of the remaining three states, Nebraska, appears poised to enact a similar law, which the Governor has said he will sign.
Kansas is now among the 39 states which have a fair procedure to allow citizens to carry handguns for protection. Along with the three states (Nebraska, Wisconsin, IIllinois) that currently do not issue permits, eight other states issue permits according to the whim of a local official (Hawaii, California, Maryland, New Jersey, New York, Massachusetts, Rhode Island, and Delaware). A Shall Issue bill is moving through the legislature in Delaware. Rhode Island already has a Shall Issue law, although the law is nullified by administrative practice.
In Wisconsin, a Shall Iissue bill has been vetoed twice, with the vetos sustained by only one or two votes. In every state where Shall Issue proponents have gotten as close as they have in Wisconsin, the state has always eventually enacted a Shall Issue law–although sometimes the process can take a while.
So of the eleven remaining states that are not Shall Issue, two of them (Nebraska and Wisconsin) are nearly certain to change at some point in the future, and there is reasonable possiblity of change in Delaware. All that Rhode Island needs to change is the election of Attorney General who will not interfere with the state law that local goverments must issue carry permits to qualified applicants.
So the number of Shall Issue states could be 43 in the not too distant future. In the seven hold-out states, Shall Issue has passed one body of the legislature at least once in the three largest states: California, New York, and Illinois.
Every year, more and more Shall Issue states create “reciprocity” with each other, so that a person with a permit from her home state can carry her firearm lawfully in a other state while visiting. Currently, a carry permit issued by one state is valid in over half of all states. (See for details.)
As the combined total of “no issue” or “whimsical issue” states declines into the single digits, and reciprocity continues to spread, it seems hard to deny that America is concluding that Shall Issue is sensible gun control — one that regulates firearms carrying but does not infringe the right to self-defense.
For more on the Kansas law, see this excellent article in the Wichita Eagle.

Gasoline prices spike

by Walter Olson on September 1, 2005

You’d think one advantage of electing a Texas oil guy as president would be that, when prices at the pump react to a genuinely massive supply disruption as supply and demand predict they will, he’d know better than to direct public anger toward the ill-defined offense of “price gouging”. Apparently you’d be wrong, though:

“I think there ought to be zero tolerance of people breaking the law during an emergency such as this -– whether it be looting, or price gouging at the gasoline pump, or taking advantage of charitable giving or insurance fraud,” Bush said. “And I’ve made that clear to our attorney general. The citizens ought to be working together.”

(Adam Nossiter, “More National Guardsmen are sent in”, AP/San Diego Union-Tribune, Sept. 1). More: Mark Kleiman got there first (Sept. 1)(via Julian Sanchez). See also Dan Mitchell of Heritage at C-Log (Aug. 31). And Don Boudreaux, after thanking Hawaiian pols, wonders (Aug. 29):

Would it make sense to haul before Congress a group of real-estate agents, or a few homeowners, or some home-builders to accuse them publicly of causing the recent surge in real-estate prices?

Yet more, this time from Jane Galt (Sept. 1): “Prices of everything rise after a disaster, and a good thing too, since that encourages people and material to flood into the damaged area, where they’re needed most.”

Hawaiian tribal recognition

by Walter Olson on September 1, 2005

Gail Heriot continues on the case with new posts Aug. 29 and Aug. 30. See Jun. 23, Jul. 13.

Michelle Malkin has the latest (Jul. 12).

…federal tribal recognition of native Hawaiians. Michelle Malkin is on the case (Jun. 23) (& see Jul. 13).

Nahid Davoodabadi, honeymooning in Hawaii in 1999, disappeared while kayaking. Her husband, Manouchehr Monazzami-Taghadomi, said she was killed by a shark, and set about suing the kayak rental company, Extreme Sports Hawaii, for the accident and the federal government for failing to rescue him. Extreme noted to a jury that the company had told the couple to kayak in an area close to shore protected from winds. Extreme also noted that Maui police found the kayak, its paddles, and a lifejacket–the latter without any tears or bites (though with all the buckles unbuckled). The police also found two paddles near the kayak, one leaning against rocks, though Monazzami said, among other fishy things, that he lost one of the paddles in the shark attack. (Police never charged Monazzami, who successfully petitioned a Hawaii court to have his wife declared dead, rather than missing.) The jury exonerated the company. The Ninth Circuit recently issued a ruling affirming on technical grounds the district court’s summary judgment for the government. It appears Extreme settled the case for some unknown amount rather than go through the expense of litigating the appeal. (Monazzami-Taghadomi v. United States (9th Cir. Mar. 22, 2005); Debra Barayuga, “Company not guilty in Maui kayak death”, Honolulu Star-Bulletin, May 9, 2003; “Kayak business cleared in 1999 death”, Honolulu Advertiser, May 12, 2003; Reuters, Mar. 23, 1999; Jaymes K. Song and Gary T. Kubota, “‘Unusual’: No blood on kayak”, Honolulu Star-Bulletin, Mar. 26, 1999; Charles Memminger, “Shark tale now is part of our history”, Honolulu Star-Bulletin, Mar. 26, 1999; Brian Perry, “Tourists wary in wake of latest shark attack”, Honolulu Star-Bulletin, Apr. 1, 1999; Monazzami-Taghadomi v. 25 Knots Inc. (D. Hawaii, No. CV01-00171 ACK-KSC)). For legal scholars: one asks whether anything remains of the doctrine of “assumption of the risk” if a company called “Extreme Sports Hawaii” can’t invoke it without going through a trial and an appeal.

In Connecticut, the town of Norwalk is paying $1.5 million in a settlement with pedestrians hit by a drunk driver fleeing police. Plaintiffs had sought millions. “[Julia] Johnson’s estate sought additional compensation for her death from cancer in August 2001. The estate argued that Johnson’s injuries caused her to miss a scheduled mammogram that would have caught the cancer in its early stages.” The settlement seems to be a “moral hazard” artifact of the insurance policy, which covered negligence, but not recklessness; the judge had ruled the city couldn’t be held liable for negligence, and the city worried that a jury sympathizing with the plaintiffs would’ve simply found the quantum of recklessness needed so they could award damages. This is a useful example about the inefficacy of immunity statutes that protect against “negligence” but not “gross negligence.” (Brian Lockhart, “City pays $1.5M to settle suit with hurt pedestrians”, Stamford Advocate, Mar. 14). Unrelatedly, Norwalk is also the defendant in a suit by Linda Gorman. Gorman took a job in the town clerk’s office , interacting with the general public, but complains that the town isn’t doing enough to deal with her sensitivity to fragrances and perfumes. (Brian Lockhart, “Norwalk City Hall employee files lawsuit over perfume”, Stamford Advocate, Mar. 1).

Thousands of miles away, a jury found Hawaii County 34% responsible for the death of Ellison Sweezey, who was killed when Richard Rosario, a 20-year-old crystal meth addict fleeing police, ran a red light and struck her car. Cost to taxpayers: $1.9 million. If there were joint and several liability, the county would also be on the hook for Rosario’s share. (Rod Thompson, “Jury awards $5.6M in death from car chase”, Honolulu Star-Bulletin, Mar. 9; “$5.6M awarded to family of Big Island crash victim”, Honolulu Advertiser, Mar. 9). Hawaii police have undergone training to limit their willingness to chase suspects, with the expected counterproductive result (which we discussed Sep. 21, 2003) that criminals are now more likely to flee because their chances of escape have increased. (Rod Thompson, “Car theft suspect flees after slow-speed pursuit”, Honolulu Star-Bulletin, Mar. 10). Other car-chase lawsuits: Jan. 3; Feb. 18, 2004 (& letter to the editor, Apr. 12).

“The Cheyenne and Arapaho tribes of Oklahoma filed a claim Wednesday for 27 million acres given to the tribes in a 19th century treaty but said they would settle for 500 acres to build a casino in a symbolic return to Colorado. The petition, filed with the Department of Interior, covers northeastern Colorado and about 40 percent of the state.” And just like many Eastern tribes or would-be tribes, they’ve got an investor: “Steve Hillard, a Longmont venture capitalist who pulled together investors for the plan, dubbed the ‘Homecoming Project,’ said the unresolved settlement claims could tie up land and water sales in northeastern Colorado until an agreement is reached. Hillard said similar claims in Hawaii, New York, South Carolina and Texas have slowed real estate sales.” (Deborah Frazier, “Indians file huge land claim”, Rocky Mountain News, Apr. 15). For more on Indian land claim blackmail, see Feb. 9 and Nov. 2-4, 2001, among many others.

$200 K for Moose carding?

by Walter Olson on September 16, 2003

Gregg Easterbrook’s new and already indispensable weblog for the New Republic has some harsh words (Sept. 15) for former Montgomery County, Maryland police chief Charles Moose, of sniper-investigation fame. In an episode that has received little press attention, Moose extracted something on the order of $200,000 from the Marriott hotel chain after threatening a race-bias lawsuit over an incident last December in which a guard demanded to see his room key at an exclusive beach in Hawaii (“Top cop in sniper case settles isle bias lawsuit”, AP/Honolulu Star-Bulletin, Aug. 8).

June 10-11 – New Orleans cleanup continues. “It was bad enough that New Orleans personal injury attorney Curtis Coney Jr. was illegally paying ‘runners’ to solicit accident victims, paying them $500 for each ambulance-chasing referral. When his secretary was subpoenaed to testify before a federal grand jury, Coney compounded his problems by urging her to lie about the payments, even though she was the one who usually doled them out. … In a plea agreement unveiled in federal court Wednesday, Coney, 58, pleaded guilty to 10 counts of ‘structuring’ referral payments to hide them from the state and federal governments, one count of conspiracy and one count of obstruction of justice for pressuring [the secretary] to lie. As part of the deal, lead prosecutor Irene Gonzalez recommended a 33-month jail sentence for Coney.” The lawyer’s guilty plea is among the fruits of “a 4-year federal investigation of personal injury attorneys, a quietly unfolding case that has resulted in more than 20 convictions”. Targeted along with attorneys and “runners” are “medical providers who exaggerated or falsified injury claims in order to secure lucrative insurance settlements.” (Michael Perlstein, “Lawyer guilty in referral scheme”, New Orleans Times-Picayune, May 16). (DURABLE LINK)

June 10-11 – Bounty-hunting in New Jersey. The administration of Gov. Jim McGreevey has retained a flamboyant private plaintiff’s lawyer to pursue claims seeking to hold businesses legally liable for wastes left over from the state’s industrial past. Although Allen Kanner is initially donating his services for free, it is expected that he will take a contingency stake in some or many of the state’s financial recoveries. Also being hired is a politically well-connected law firm named Lynch Martin Kroll, associated with one of the state’s Democratic power brokers. Together, Kanner and the Lynch firm “are scouring state files for possible ‘natural resource damage’ claims. Such claims — little used in the state’s past — require polluters to go far beyond simple cleanups by making them pay the public for things such as lost fishing time, lost tap water, injured wildlife and soiled scenery.” (Alexander Lane, “State retains enviro-lawyer who gets polluters’ attention”, Newark Star-Ledger, May 11). More:, Sept. 5, 2004. (DURABLE LINK)

June 10-11 – The Rule of Lawyers reviewed. In the June Commentary, Washington attorney and Findlaw columnist Barton Aronson contributes a very generous appraisal of our editor’s latest book. (DURABLE LINK)

June 9 – “Silver’s wreck”. Our editor has an op-ed piece in today’s New York Post on the impending demise of auto leasing in New York state, wrecked by the state’s archaic “vicarious liability” law whose chief defenders include the state trial lawyers’ association and Assembly Speaker Sheldon Silver (Walter Olson, New York Post, Jun. 9). Our earlier coverage of the issue is here. More: Sept. 5, 2004. (DURABLE LINK)

June 9 – “Families of teens killed in crash after rave sue U.S. government”. “Family members of five teens who died when their car careened off a cliff after an all-night rave party have filed a suit against the U.S. government for issuing the event’s permit. ‘If you knowingly allow use of your land for a drug party and people get killed, we allege you are partially responsible,’ said Andrew Spielberger, a West Hollywood-based attorney representing the families.” (AP/Sacramento Bee, Jun. 1). (DURABLE LINK)

June 9 – The intimidation tactics of Madison County. Four business groups held a press event in Madison County, Ill., last week to unveil the latest report depicting the county’s courts as a paradise for plaintiff’s lawyers (U.S. Chamber of Commerce, “The Rogue Courts of Madison County” (PDF)). What happened next? Local plaintiff’s attorney Bradley M. Lakin promptly slapped them with a subpoena demanding that their executives testify in a would-be class action case against Ford Motor on alleged paint defects. “Subpoenas are for witnesses who know something about the case,” said Victor E. Schwartz, general counsel of the American Tort Reform Association. “In this situation, ATRA knows nothing. It is clear the subpoena power is being used to squelch ATRA from speaking out about Madison County and its inequities as one of the leading ‘judicial hellholes’ in the United States.” Last year ATRA published a report entitled “Justice for Sale: The Judges of Madison County“. (“ATRA Says Subpoena Power Should Not Be Used To Squelch First Amendment Rights”, ATRA press release, Jun. 6; Illinois Civil Justice League, which was one of the subpoenaed groups along with ATRA and the national and Illinois Chambers of Commerce, has links). Updates Jul. 12: subpoenas dropped and Jul. 26: sanctions motions dropped.

And St. Louis Post-Dispatch columnist Bill McClellan turns the spotlight on a recent Madison County class action settlement involving Sears tires: “If you have a receipt showing you purchased an AccuBalance from a Sears auto center between 1989 and 1994 and are willing to take the time to request a claims form and fill it out and send it in, you could get $2.50 for each tire, up to a total of $10. Of course, who keeps receipts from 1989? You still might be eligible for $1.25 a tire, up to a total of $5. If Sears does not have a record of your purchase, you will be eligible only for a $3 Sears coupon. Of course, there will be forms to fill out under threat of perjury. Things are a little better for the lawyers who ‘represented’ you. The settlement says that their legal fees cannot exceed $2.45 million.” McClellan is bold to tackle this subject, since when he criticized lawyers from the same class-action firm in 1999 they came after him with a lawsuit, later dropped (see Nov. 4, 1999)(Bill McClellan, “Just like your tires, wheels of justice may be out of balance”, St. Louis Post-Dispatch, Jun. 4). (DURABLE LINK)

June 6-8 – New legal ethics weblog. David Giacalone, formerly of PrairieLaw, has started a new weblog, ethicalEsq?, specializing in “client-centered legal ethics”. He’s already posted on several issues of interest, including Common Good’s early-offers proposal (May 30 and Jun. 3), the case for requiring lawyers to disclose more fully to clients the circumstances of their representation (Jun. 3), and (citing this website) the still-unfolding battle in a New York courtroom over whether Judge Charles Ramos has authority to review and correct outrageous tobacco fees (May 31; on tobacco fees, see Daniel Wise, “Judge’s Power to Review $625M Tobacco Fee Award Challenged”, New York Law Journal, May 28). (DURABLE LINK)

June 6-8 – Claims consciousness in Utah. To promote a contemplated April Fool’s Day festival, Mayor Gerald R. Sherratt of Cedar City, Utah, published in local papers a tall tale about how wandering Vikings had left precious ancient artifacts in a local cave. Most residents seem to have gotten the joke, but various readers in the nearby town of St. George stepped forward to lay claim to the supposed treasure found in the cave, several of them saying “their ancestors had been part of the settlement and had owned some of the artifacts. …When Sherratt explained the whole story was made up to promote the festival, the St. George residents accused him and other officials of a cover-up.” (Paul Rolly and JoAnn Jacobsen-Wells, “Ad Flap Is Stranger Than Fiction”, Salt Lake Tribune, May 26). (DURABLE LINK)

June 6-8 – Hiker cuts off use of his name. Equipped to Survive, a wilderness gear site, recommended a pocket-sized emergency beacon by referring to a recent survival story that received worldwide publicity: “Your survival should not require you to amputate your own arm, as Aron Ralston was recently forced to do in order to escape being trapped by an 800-lb. boulder.” Before long the site’s proprietor received this cease and desist letter (PDF format) dated June 5 from Ralston’s lawyer demanding that the reference be removed as in violation of the hiker’s “right of publicity” under state statutes. There followed this rude reply from the website proprietor, inviting the lawyer to “stick your ridiculous cease and desist demand where the sun don’t shine”. Now cut that out, boys, there’s no reason we can’t be polite. (DURABLE LINK)

June 4-5 – Blaming murder on flat tire. A 19-year-old woman, having stopped to change a flat tire at the side of the road, is taken away and murdered by a local man. According to a lawyer for her family, the Ford Motor Co. and tiremaker Bridgestone/Firestone should be made to pay for the murder. A court dismissed the case against the two companies on grounds that they could not have found harm of this sort foreseeable enough to trigger a legal duty of care, but the family’s lawyer, Richard Rensch, is appealing to the Nebraska Supreme Court. (AP/KETV, Jun. 3; “Murder victim’s parents say flat set off tragic events”, Fremont (Neb.) Tribune, Jun. 3). (DURABLE LINK)

June 4-5 – Fox News “The Big Story”. Our editor was interviewed on screen for a piece that Fox News’s “The Big Story” is preparing on the search for deep pockets in litigation. It’s tentatively scheduled to run Wednesday, but these things are always subject to change. Update: it did run Wednesday, Jun. 4. (DURABLE LINK)

June 4-5 – Malpractice: juggling the stats. In the course of an otherwise standard feature package on the medical malpractice crisis (Daniel Eisenberg and Maggie Sieger, “The Doctor is Out”, Time, Jun. 9, and sidebars) Time gives credence to a newly issued report asserting that doctors’ malpractice premiums are actually rising fastest in states without damage caps (Jyoti Thottam, “A Chastened Insurer”, Jun. 1). Very curiously, the new report (from Weiss Ratings, “an independent insurance-rating agency in Palm Beach Gardens, Fla.”) is described as compiling figures for median premiums and payouts (the numbers compared with which half of the data points are higher and half lower) rather than averages, even though this is a field where the outliers (giant awards, unusually litigious specialties) drive the debate and the dollar figures. CalPundit (Jun. 2) spots this anomaly and opines: “this is so obviously the wrong statistic to use in this case that there must be some kind of axe to grind here” (via Jonathan Adler, NR Corner).

A table laying out the (very large) differences between malpractice premiums between Los Angeles (where doctors practice under California’s MICRA damages cap) and three litigious jurisdictions elsewhere in the country (Miami, Long Island, Detroit) indicates that MICRA confers its greatest benefit by far on the most litigation-prone specialties: for example, the average savings from MICRA for a neurosurgeon is $ 145,813 and for an ob/gyn $ 88,593, but it’s only $24,599 for an internist and $15,639 for a dermatologist (“2003 Malpractice Premium Comparison“, California Physician (California Medical Association)) (PDF format)(CMA’s MICRA Resource Center). For a more reliable reading of the crisis and its relation to damage caps and the insurance market, check out the report issued by the U.S. Department of Health and Human Services this spring (“Addressing the New Health Care Crisis: Reforming the Medical Litigation System to Improve the Quality of Health Care”, Mar. 3; Senate testimony by Deputy Secretary Claude A. Allen, Mar. 13).

How big an impact do the “outlier” cases have, the small number of gigantic verdicts that almost vanish from the calculation when per-case outlays are calculated as a median? Among recent examples are the $78.5-million verdict against an Orlando hospital for failing to figure out that a woman visiting its emergency room was suffering from a bizarre undiagnosed tumor; thought to be the largest medical malpractice award in Florida history, it has “become the symbol of juries run amok” in the view of critics of the system. (William R. Levesque, “Tremors still felt from whopping jury award”, St. Petersburg Times, Jun. 2). And in a result vocally criticized by appeals judges even as they felt obliged to uphold it, a Manhattan jury’s $40 million malpractice award against one of the city’s premier hospitals, New York-Presbyterian, has been blown up to $140 million by a law mandating that annual interest of 4 percent be added to awards “even if the jury has already adjusted the annual amount for inflation. Critics say that means a double adjustment for inflation in some cases, like this one.” (Richard Perez-Pena, “New York Hospitals Fearing Malpractice Crisis”, New York Times, Jun. 3). (DURABLE LINK)

June 4-5 – “Rape defendant asks $20,000; found fly in mashed potatoes”. “If convicted later this year of raping a 16-year-old girl, [Kenneth] Williams could be sentenced to 112 years to life in prison. It would be his third, and last, trip to state prison, authorities say.” What has upset Williams recently, however, is the insect impurity he says he found in his prison dinner. He “is seeking $20,000 to ease the ‘mental stress and anguish’ he said finding the fly inflicted upon him. ‘It’s been almost a month since this occurred,’ Williams wrote last week in the claim, ‘and I still only pick at my food …. I’m losing weight and am unable to eat properly.’” The sum demanded was fair, according to his complaint, since public venting of the allegations “would cost the county ‘a great deal more both financially and in bad publicity.’” (J. Harry Jones, San Diego Union-Tribune, Jun. 3). (DURABLE LINK)

June 3 – An important litigation skill. From Gail Diane Cox’s “Voir Dire” column in the National Law Journal, Nov. 4, 2002 (scroll down to “Jargon Watch”): “Blamestorming: Variant of brainstorming. Sitting around in a group discussing a mistake and how to make someone responsible for it, preferably a deep-pocket defendant. Synonym: Litigation initiation.” Maybe a session of this sort was responsible for the naming of Shell Oil as a defendant in the Rhode Island nightclub fire (see May 30-Jun. 1). (DURABLE LINK)

June 3 – “Resumé spam saddles employers”. It’s common these days for employers to receive hundreds, thousands or even milllions of resumés via email from hopeful job-seekers. Federal regulations on the books since the 1970s, however, require most larger companies to preserve records of all job applications, the most important reason being to furnish evidence in case they are someday investigated for possible discrimination. Under the strictest interpretation of the rules, companies with more than fifteen employees must keep on file any resumé sent to them — even if “the applicant misspells the company’s name, applies for a job not listed or is simply not qualified.” The result: a large and ever-growing paperwork/compliance burden on American business. (Bill Atkinson, “Resume spam saddles employers”, Baltimore Sun, May 22; Michelle Martinez, “Who Really Is An Applicant When Recruiting Online?”,, undated). See Shirleen Holt, “Résumé spam is tiring those hiring”, Seattle Times, Jan. 19; Katherine Harding, “The new scourge: Résumé spam”, (Globe & Mail, Canada), Jan. 8 (“Companies that advertise jobs on-line are finding their e-mail boxes crammed with irrelevant responses”, some from applicants who blast out responses to every job listed on a posting board). (DURABLE LINK)

June 2 – Updates. Further developments in cases we’ve covered:

* Citing its recent jurisprudence bringing constitutional due process limits to bear on punitive damages, the U.S. Supreme Court has instructed lower courts to reduce a $290 million award against Ford Motor in the Romo case; the case arose from a Bronco rollover in central California, and we’ve had quite a bit to say about it over the four years since it went to trial (see Oct. 24, 2002 and links from there) (David Kravets, “High Court Reduces Damages in Car Crash”, AP/Yahoo, May 19; Bob Egelko, “Key ruling on punitive damages”, San Francisco Chronicle, May 19);

* The Los Angeles Zoo has transferred Ruby, its female African elephant, to a Tennessee zoo notwithstanding a pending lawsuit (see May 16-18) complaining that the move would disrupt Ruby’s bond with her elephant “best friend”; an attorney who had gone to court seeking a temporary restraining order against splitting the two elephants complained that zoo authorities had acted “like thieves in the middle of the night”. (Carla Hall, “Despite Protests, L.A. Zoo Sends Elephant to Tennessee”, Los Angeles Times, May 27) (via SoCalLaw, May 27);

* The Supreme Court of Hawaii has reversed a jury’s award of $2 million to an auto service manager fired over what his employer considered credible charges of sexual harassment (see Mar. 10-12, 2000) (Gonsalves v. Nissan Motor Corp. in Hawaii, Ltd., Supreme Court of Hawaii, Nov. 27, 2002; see Jeffrey Harris, “Law Watch: Preventing Harassment Trumps Keeping Promises”, Hawaii Business, Feb. 20);

* In a humiliating defeat for backers of anti-gun litigation, a federal “advisory” jury in Brooklyn has refused to hold manufacturers liable for inner-city gun crime in the much-publicized case brought by the NAACP before judge Jack Weinstein. “The panel of 12 jurors issued a finding of no liability for 45 of the defendants and was unable to reach a verdict for the remaining 23 manufacturers or gun dealers”. (Mark Hamblett, “Federal Advisory Jury Declines to Find Gun Industry Liable”, New York Law Journal, May 15; Katherine Mangu-Ward, “No Smoking Gun”,, May 8). Update Jul. 20: judge dismisses lawsuit entirely. (DURABLE LINK)

April 30 – “Lawyers who won $10 bil. verdict had donated to judge”. Okay, so it’s among the year’s least surprising headlines: “Illinois campaign records show 19 lawyers or relatives connected to a law firm [Korein Tillery] that recently won a record tobacco judgment gave almost $10,000 in political donations to the presiding state judge last year, according to a published report”. Perhaps a bit more surprising: Judge Nicholas Byron’s campaign had also gotten $6,000 from the law firm that represented the defendant, Philip Morris. “Illinois law doesn’t prevent judges from accepting money from attorneys who argue cases in their courts, and there are no limits on the number or amount of contributions that politicians and judges can accept.” (AP/Chicago Sun-Times, Apr. 14; “Tobacco Case Judge Got Campaign Funds From Lawyers: Report”, Wall Street Journal, Apr. 11). An analysis for the St. Louis Post-Dispatch “found that judges running for election or retention in Madison County last year averaged more than $100,000 each in campaign receipts. That’s three times the roughly $29,000 average the newspaper found for judges statewide and 10 times the $10,000 average in Cook County’s crowded judicial system. The average take for Madison County judges is about four times more than for judges in neighboring St. Clair County, which has roughly the same population.” Most of the donations came from practicing lawyers. (Kevin McDermott, $218,000 for one judge”, St. Louis Post-Dispatch, Apr. 27)(see Mar. 24, Apr. 2, Apr. 4).

State governments — and the municipal-finance lawyers that have helped them “securitize” streams of future tobacco booty — heaved a sigh of relief when Judge Byron earlier this month agreed to reduce Philip Morris’s appeals bond (to a still extraordinarily onerous level), thus averting a possible bankruptcy filing and interruption of payments to the states (Brenda Sandburg, “Tobacco Decision Gives Bond Lawyers Breathing Room”, The Recorder, Apr. 15). Judge Byron also decreed in the original verdict that the tobacco company should pay the plaintiff’s team legal fees approaching $1.8 billion, which works out to $13,100 per hour even if you swallow the lawyers’ contention that they spent a staggering 135,500 hours of work on the case over the past three years. If you’re curious to see the audit trail documenting those hours, your curiosity may be in vain. “Charles W. Chapman, a retired Illinois appellate court judge who testified in support of such fees for the plaintiffs’ attorneys, “said that it was not his duty to verify the hours Tillery worked. ‘It’s basically an honor system,’ Chapman said. ‘I don’t have any way of knowing if he worked those hours.’” (Trisha L. Howard and Paul Hampe, “Record legal fee averages to $13,100 an hour”, St. Louis Post-Dispatch, Apr. 6). (DURABLE LINK)

April 28-29 — Latest Rule of Lawyers publicity. At, reviewer Robert Lenzner pens a rave for our editor’s new book: “Anyone in the market for a truly gripping read about tort lawyers should skip [John] Grisham’s [latest] novel and instead pick up Walter K. Olson’s nonfiction book The Rule of Lawyers, a brilliant expose of the way courts are being overwhelmed by mass tort actions. … Grisham’s indictment of the tort bar can’t hold a candle to Olson’s thorough journalistic impeachment of the dangers posed by these lawyers.” (Robert Lenzner, “The Rule of Lawyers”,, Apr. 21). The blurb/summary for the review provided by the editors is reasonably flattering as well. In Paris, meanwhile, Le Monde discusses our editor’s “dernier livre” and also provides a link to this website, which it describes as “très documenté”. (Claire Ané, “Dommages et intérêts collatéraux de la justice américaine”, Le Monde, Apr. 22). The March/April issue of the American Spectator features a substantial excerpt from the book’s chapter on trial lawyers and politics (Walter Olson, “The Lawsuit Lobby”, not online). In the print version of National Review, the book is favorably reviewed by Doug Bandow (“Shyster Heaven”, Apr. 21). And the Boston Globe‘s Charles Stein mentioned the book and quoted our editor in a recent column on the states’ interest in preventing tobacco companies from going under (“States confront a necessity: ‘evil’”, Apr. 13). (DURABLE LINK)

April 28-29 – Had no idea you can’t launder campaign contributions. “A lawyer for Tab Turner, the head of a Little Rock law firm under investigation by the U.S. Department of Justice, suggested Thursday that his client had not been aware of an election law that prevents him from reimbursing employees who contribute to U.S. Sen. John Edwards’ presidential campaign.” (John Wagner, “Edwards donor will cooperate”, Raleigh News & Observer, Apr. 25). “Twenty people who were identified on Edwards’s report as ‘paralegal’ employees each gave $2,000, as did nine persons described as ‘legal assistants.’” Most of those contacted by the Washington Post claimed that they had chosen to donate their own money, but two employees at Turner’s firm indicated that they expected to be reimbursed by their employer. “Federal election laws prohibit a person from funneling donations through someone else to conceal their source. Such practices would enable the reimburser to exceed the legal contribution limit for individuals, recently raised to $2,000 from $1,000 per election.” Turner is among the best-known attorneys specializing in product liability suits against automakers. (Thomas B. Edsall and Dan Balz, “Edwards Returns Law Firm’s Donations”, Washington Post, Apr. 18). (DURABLE LINK)

April 28-29 – “Solicitor billed for 81-hour day”. Pennsylvania: “The lawyer for Upper Darby’s financially pressed schools paid back $19,361 in fees after The Inquirer showed him evidence that he had billed the district for more than 24 hours’ work on each of four days. …Barry Van Rensler, who was paid $421,327 last year and more than $2.8 million in his last 14 years as district solicitor, said the billings in question were innocent mistakes involving misplaced decimal points. … District officials say they are satisfied that the errors in Van Rensler’s billings were innocent.” One bill was for an 81-hour day. (Barbara Boyer and Tina Moore, Philadelphia Inquirer, Apr. 27). (DURABLE LINK)

April 28-29 – Wouldn’t want to look unsafe. City officials in Oakland, Calif. would like to crack down on businesses’ right to use “exterior security devices” to protect their premises. Aside from unsightliness, “It gives a sense that our community is not a very safe city,” said City Manager Robert Bobb. Last month a City Council committee “backed a plan … to prohibit barbed wire fences in commercial districts but stopped short of supporting a more far-reaching proposal to eliminate burglar bars, roll-down doors and retractable security gates, common fixtures throughout the city.” Many small business owners aren’t impressed: “‘There is a lot of crime in Oakland. Who’s trying to kid who?’ Josefina Lopez, owner of Corazon Del Pueblo, said at her Mexican imports store and art gallery on International Boulevard, near High Street. … When riots broke out after the Super Bowl in January, Lopez watched from her store as vandals and looters broke nearly every window of the Kelly-Moore Paint store across the street. Her shop, with a wrought-iron gate in front of its doors and metal roll-down doors over the windows, escaped unharmed.” (Janine DeFao, “Oakland trying to avoid that ‘war zone’ look: Ban on metal bars, roll-down doors considered”, San Francisco Chronicle, Mar. 26). (DURABLE LINK)

April 25-27 – Price of bad hairdo: $6,000. “The bad hairdo blamed by a woman for her emotional tailspin was worth $6,000, a St. Louis County jury decided Wednesday in a verdict that delivered far less than she sought.” Geremie Hoff sued the local Elizabeth Arden salon after an Aug. 2001 hair straightening job was followed by brittleness and fall-outs. Hoff’s attorney had said “his client was so distressed that she retired early from the University of Missouri at St. Louis, where she taught, and also stopped guiding tours to Italy.” A defense lawyer, however, “noted that Hoff didn’t retire until nearly a year later, after her hair returned. He said her tour business would have suffered anyway, in the aftermath of the terrorist attacks of Sept. 11, 2001.” (William C. Lhotka, “Jury awards Creve Coeur woman $6,000 in suit over hairdo”, St. Louis Post-Dispatch, Apr. 9; Cynthia Billhartz, “What’s the price of a really bad hair day?”, Apr. 14). (DURABLE LINK)

April 25-27 – Gun lawsuit columns. Did the U.S. House of Representatives ignore proper principles of federalism when it recently passed a bill that would pre-empt some lawsuits in state court seeking to saddle gun manufacturers with the costs of crimes? Columnist Jacob Sullum takes up the question, quoting our editor’s recent Capitol Hill testimony on the subject (“Federalist Case”, syndicated/Reason, Apr. 18). Also citing our work on gun lawsuits recently have been columnists Chuck Colson (“Standing on Dangerous Ground”, syndicated/TownHall, Apr. 16); Wayne LaPierre of the National Rifle Association, in his second monthly column in a row (“Standing Guard”, American Hunter, May, not online); and Paul Craig Roberts (“Gun control: the criminal lobby”, syndicated/Town Hall, Apr. 23). (DURABLE LINK)

April 25-27 – “Reforming Class-Action Suits”. “[C]ompanies operating nationwide get haled into local courts that plaintiffs’ lawyers have found particularly willing to accept class actions — and to hit out-of-state firms with costly judgments. This situation allows state judges at the county level to issue rulings that ‘federalize’ their decisions — effectively writing rules for the whole country. In recent years, for example, an Illinois court imposed Illinois law on the insurance laws or regulations of New York, Massachusetts, and Hawaii. Class-action suits have also become an ATM for unscrupulous lawyers, who win millions of dollars for themselves but sometimes leave clients empty-handed.” The Christian Science Monitor lends its editorial endorsement to the Class Action Fairness Act, which has passed the House and is now pending in the Senate (Apr. 17). And Baseball Crank, which we have been tardy in thanking for its kind link to us, has a highly recommended post (Apr. 16) on “Federalism’s Edge: the point at which an exercise of state power (by a state or group of states) infringes on the right to self-government of the citizens of the other states”, an issue that underlies both the CAFA and gun-suit-preemption controversies. (DURABLE LINK)

April 25-27 – Manufacturer sued after bullet fails to take down lion. Professional big-game hunter Rolf Rohwer is suing bullet manufacturers after an unfortunate occurrence on safari in Africa in which he shot a charging lion from about 30 yards away but was mauled anyway. According to his lawyer’s allegations, the Federal Cartridge Co.’s Trophy Bonded Bear Claw bullet, even if suitable for hunting such big game animals as rhinoceros, elephant, buffalo and hippopotamus, was insufficiently lethal when aimed at a lion because the smaller animal’s thinner skin permitted the bullet to pass through with minimal damage. (Howie Padilla, “Injured big-game hunter takes aim at bullet manufacturers”, Minneapolis Star Tribune, Apr. 16). Update Jan. 15, 2005: judge dismisses complaint. (DURABLE LINK)

April 24 – Posting to resume tomorrow. Following two weeks in which our editor, called away by a death in his family, was without web-posting capability, we expect to pick up where we left off momentarily.

April 14-23 – (On hiatus).