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Joe Jamail

Pennzoil v. Texaco

by Ted Frank on March 30, 2008

Via Kirkendall, Carl Icahn talks about litigating in a judicial hellhole against Joe Jamail. NSFW, but a spectacular punchline.

More on Jamail.

The Houston Chronicle has more on Joe Jamail’s defeat of John O’Quinn in the expense-ethics battle earlier detailed in this space (Jul. 19, etc.). Several of the experts quoted seem at pains to minimize the seriousness of O’Quinn’s ethical lapse, but there’s a good quote at the end from Dallas legal-malpractice lawyer Randy Johnston: “When John O’Quinn goes up against Joe Jamail, I promise you, it isn’t all about the money.” Why? Because it’s about the ego too. (Mary Flood, “Legal trend of leveling suits against fellow litigators likened to cannibalism”, Houston Chronicle, Jul. 21)(via ShopFloor).

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As we reported in April, trial lawyer John O’Quinn is subject to a potential contempt hearing for allegedly improperly withholding $18.9 million of settlement money from his breast implant clients. It turns out that this wasn’t the first mention of the scandal in Overlawyered. In August 1999, Walter reported:

As one of the wealthiest and most successful plaintiff’s lawyers ever, Houston’s John O’Quinn has been known to call press conferences at which he’s leveled charges highly damaging to his opponents’ reputations, accusing them (for example) of conspiring to “remain silent, conceal or suppress information” about problems with their products and operations. So what happened June 4 when O’Quinn was himself sued by a group of unhappy former breast-implant clients seeking class-action status against him? As Brenda Jeffreys reported in the June 14 Texas Lawyer, O’Quinn “didn’t hesitate before pummeling the class action lawyers with a libel suit” charging the lawyers with “encourag[ing] the news media to disseminate false, slanderous and libelous comments about Plaintiff” — said encouragement consisting of their press release about the lawsuit, and the press conference they were planning that would have explained it further.

Had the lawyers challenging O’Quinn succeeded in holding their press conference, interesting questions might have been aired. Their suit charges that a group of women numbering at least 2,000 were wrongfully overcharged tens of millions of dollars in claimed expenses, and that the firm of O’Quinn and Laminack breached its fiduciary duty to them; it sought a fee forfeiture totaling $580 million. But O’Quinn’s firm rushed to court to ask for a temporary restraining order to prevent the lawyers from holding a press event, and on June 7, while a judge was considering that motion, they agreed to a gag order and called off the conference they’d scheduled for that day. The whole process — from the first public notice of the suit to the gag order in hand — had taken only three days. “O’Quinn’s quick action may have prevented a firestorm of public attention to the class action suit,” writes the Texas Lawyer’s Jeffreys. It is not recorded whether any of the defendants O’Quinn has sued have ever tried, let alone succeeded in, such a tactic against him.

Here’s an entertaining wrinkle we haven’t reported: the case was sent to an arbitrator, because trial lawyer O’Quinn had required his clients to sign a binding arbitration agreement in the event of disputes! (The irony here is far greater than any Judge Bork personal injury suit.)

The Houston Chronicle reports that the three Houston attorneys on the arbitration panel determined in March that O’Quinn’s deduction was not authorized by his contracts with his clients, and that they are now deciding damages. The former clients, now represented by Joe Jamail, are asking for O’Quinn to completely disgorge all of his fees, a legitimate possibility under the Burrow v. Arce decision, which would be over half a billion dollars. Arbitration decisions are generally not appealable. It’s unclear what has happened to O’Quinn’s countersuit against his clients alleging libel. (Mary Flood, “O’Quinn’s law clients win round against him”, Houston Chronicle, Jun. 9 (h/t W.F.)).

Arbitration is generally quicker than litigation, but O’Quinn seems to have successfully stalled this case for over seven years, not to mention avoid any publicity from it. To date, we are the only media source that has even mentioned the contempt hearing.

It’s back on YouTube (via Prof. Childs and Nicole Black).

These guys are nothing like Joe Jamail, but honestly, does this scene make you want to be a jurist?

The notorious Joe Jamail/Edward Carstarphen deposition video (Apr. 8, Apr. 27) has been getting another round of attention thanks to new links from Andrew Sullivan and Dale Carpenter. Among a number of interesting reader comments at the latter site is this from John Steele (excerpt):

…For years now, I’ve been having my students do dramatic readings of both the famous Jamail depos. The reaction is usually a mixture of laughter and disgust. If anyone wants the two transcripts, shoot me an email….

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More on Joe Jamail

by Walter Olson on April 27, 2006

A belated viewing of the now infamous deposition video (see Apr. 8) stirs memories for Prof. Bainbridge of a few highlights from the suave and distinguished career of zillionaire Houston litigator Joe “You could gag a maggot off a meat wagon” Jamail (Apr. 20). In comments, “Thief” of “Thief’s Den” points out that famously civility-challenged lawprof Brian Leiter holds the “Joseph D. Jamail Centennial Chair in Law” at the University of Texas, Austin.

Dignity of the profession dept.: this YouTube video of the famed Texas lawyer and UT benefactor in action is making the rounds (warning: offensive everything). It’s discussed by BrainWidth, Froomkin, Childs, Hurt, Kirkendall, Caron, Metafilter, etc. One of those present The man in the chair is named Edward Carstarphen. [note: a commenter says we erred in initially reporting that Carstarphen was the witness being deposed; see also David Stone, Apr. 11]. For more on Mr. Jamail’s record as a paladin of civility, see Apr. 19, 2000 (“gag a maggot off a meat wagon”). Update: link changed to working YouTube location, see Jan. 9, 2007.

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Florida class action (Engle), 2003:A $710 million loose end“, Jun. 24; ““Trial lawyers get spanked’“, May 24-26; “Court overturns $145 billion Engle award“, May 22-23. 2001:Angles on Engle“, May 24.  2000:‘Not even thinking about’ fees“, Aug. 11-13; “Smoking and responsibility: columnists weigh in“, Jul. 28-30; “‘Poll: majority disapprove of tobacco fine’“, Jul. 24-25; “Florida verdict: more editorial reaction“, Jul. 24-25; “Smoking and responsibility: columnists weigh in“, Jul. 28-30; Editorial roundup“, Jul. 19-20; “Florida tobacco verdict“, July 18; “Tobacco: why stop at net worth?” (punitive damage rulings by judge), Jul. 10; “Another Mr. Civility nominee” (Stanley Rosenblatt), Jun. 2-4.  1999:$49 million lawyers’ fee okayed in case where clients got nothing” (secondhand smoke class action), Sept. 28; “Personal responsibility takes a vacation in Miami“, Jul. 8; “The Florida tobacco jurors: anything but typical“, Wall Street Journal, Jul. 12, 1999. 

Tobacco fees reconsidered, 2003:Senate panel nixes tobacco-fee clawback“, May 9-11; “Feds indict former Texas AG“, Mar. 8-9; “‘Not a pretty picture’“, Jan. 10-12.  2002:Judge overturns $1.3 billion tobacco fee award” (Castano Group), Sept. 27-29; “Welcome Fox News viewers/ readers“, Aug. 2-4; “Tobacco fees: one brave judge” (New York), Jul. 30-31 (& Aug. 2-4, Jun. 21-23, Oct. 16-17, Oct. 25-27, 2002; Feb. 11 & Jun. 6-8, 2003; May 11, 2001).


‘Lawyers who won $10 bil. verdict had donated to judge’“, Apr. 30, 2003; “A bond too far“, Apr. 4-6; “Appeals bonds, again“, Apr. 2-3; “Mad County pays out again” (“light” cigarette class action), Mar. 24, 2003.

‘Nanny Bloomberg’” (NYC smoking ban), Oct. 22, 2002.

Tobacco fees, state by state, 2003:‘Law firms in tobacco suit seek $1.2b more’” (Mass.), May 19 (& Jan. 2-3, 2002, Dec. 22, 1999); “Feds indict former Texas AG“, Mar. 8-9 (& May 22, Sept. 1-3, 2000; Jun. 21, Aug. 29-30, Nov. 12, 2001, Jul. 15, Jul. 30-31, 2002; Jan. 10-12, 2003). 2002:Judge overturns $1.3 billion tobacco fee award” (Castano Group, California), Sept. 27-29; “Tobacco fees: one brave judge” (N.Y.), Jul. 30-31 (& Aug. 2-4, Jun. 21-23, 2002, Oct. 16-17, 2002, Feb. 11, 2003, May 11, 2001); “Dewey deserve that much?“, Mar. 6; “Mass., Ill., NYC tobacco fees“, Jan. 2-3.  2001:Michigan tobacco fees“, Sept. 19-20; “Tobacco-fee tensions” (Fla. resumes investing in tobacco cos.), Jun. 21 (& letter to editor, Jul. 6); “Missouri’s tagalong tobacco fees“, Jun. 5 (& Sept. 21, 2000); “‘Lungren now a paid advocate for his former foes’” (Calif.), Apr. 5; “(Another) ‘Monster Fee Award for Tobacco Fighters’” (Calif. cities and counties), Mar. 21-22; “Reclaiming the tobacco loot“, Mar. 15; “Lawyers get tobacco fees early“, Mar. 5; “Tobacco arbitrator: they all know whose side I’m on“, Feb. 16-19.  2000:Beehive of legal activity: Utah tobacco fees“, Nov. 6; “South Carolina tobacco fees: how to farm money“, Oct. 25; “Gore amid friendly crowd (again)” (Fla.), Apr. 12 (& “Dershowitz’s Florida frolic?“, Jul. 17; also see Dec. 8-10, 2000, Aug. 8-9, 2000, Dec. 27-28, 1999); “Sooner get rich” (Oklahoma), Jun. 7; “‘Lawyers’ tobacco-suit fees invite revolt’” (Ohio), May 23; “North Carolina (& Kentucky & Tennessee) tobacco fees“, May 2; “Connecticut AG has ‘no idea’ whether lawyers he hired are overcharging“, Feb. 3 (& update Feb. 16); “Pennsylvania tobacco fees: such a bargain!“, Jan. 10 (& Oct. 24, 2002). 1999:Maryland’s kingmaker” (Peter Angelos), Oct. 19 (& Dec. 9, 1999, Oct. 16-17, 2000, June 21, 2001, Apr. 10, 2002); “Illinois tobacco fees“, Oct. 16-17; “My dear old tobacco-fee friends” (Kansas AG, like Connecticut’s, gave tobacco business to her old law firm), Oct. 11 (see also Sept. 21, 2000); “Boardwalk bonanza” (N.J.), Oct. 1-3; “News judgment“, Aug. 6; “Puff, the magic fees” (Wisc.), Jul. 13. 

Tobacco-fee tycoons, 2003:Class action lawyer takes $20 million from defendant’s side” (Joseph Rice), Mar. 15-16; “‘Not a pretty picture’“, Jan. 10-12; 2002:Rumblings in Mississippi” (Scruggs, Minor), Oct. 9-10 (& Nov. 6); “Judge overturns $1.3 billion tobacco fee award” (Castano Group), Sept. 27-29.  2001:Settle a dispute today” (O’Quinn vs. Jamail), Sept. 18; “Ness monster sighted in Narragansett Bay” (Rhode Island, Ness Motley), Jun. 7 (& see Oct. 6-9, 2000, July 17, 2000, Nov. 1, 1999). 2000:Punch-outs, Florida style” (Robert Montgomery), Nov. 17-19 (& see Aug. 8, April 12, 2000; Aug. 21-22, 1999); “Friend to the famous” (Williams Bailey), Oct. 12; “Senator Lieberman: a sampler” (voted to curb tobacco fees), Aug. 8-9; “Trial lawyer candidates” (Minnesota’s Ciresi), Jul. 6 (& update Sept. 15-17; loses primary bid); “‘Lawyers’ tobacco-suit fees invite revolt’” (USA Today editorial), May 23.  1999:Who’s afraid of Dickie Scruggs?“, Dec. 2; “Maryland’s kingmaker” (Peter Angelos), Oct. 19 (& Dec. 9, 1999, Oct. 16-17, 2000, June 21, 2001); “The Marie Antoinette school of public relations” (tobacco lawyers pose for photo shoot on their yachts, horse farms, etc.), Aug. 21-22; and see lawyers’ campaign contributions

Humor:Dave Barry on tobacco settlement, round III“, Sept. 16-17, 2002; “Dave Barry on tobacco suits, round II“, March 16, 2000; “Dave Barry on federal tobacco suit“, Oct. 26, 1999; “Cartoon that made us laugh” (“….We can’t take those off the market! Dangerous products are a gold mine for the government!”), Jan. 21-23, 2000.
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Terms of state tobacco settlement, 2003: Appeals bonds, again“, Apr. 2-3. 2002:We did it all for the public health, cont’d” (Alabama devotes more proceeds to tobacco farmers than to smoking reduction), Aug. 22; “Tobacco settlement funds go to tobacco promotion” (N.C.), Jun. 28-30;  “‘Bush budget surprise: $25M for tobacco suit’” (Martha Derthick, Up in Smoke), Feb. 20. 2001:Tobacco-fee tensions” (Fla. resumes investing in tobacco cos.), Jun. 21 (& letter to editor, Jul. 6); “Reclaiming the tobacco loot“, Mar. 15; “Push him into a bedroom, hand him a script” (Bill Clinton testimonial for tobacco lawyers), Mar. 9-11; “Lawyers get tobacco fees early“, Mar. 5; “Tobacco arbitrator: they all know whose side I’m on“, Feb. 16-19; “Safer smokes vs. the settlement cartel“, Feb. 7-8.  2000:Missouri tobacco fees“, Sept. 21, 2000; “Tobacco- and gun-suit reading” (Stuart Taylor, Jr.), Aug. 21-22, 2000; “Challenging the multistate settlement“, Jul. 17, 2000.  1999:‘Few Settlement Dollars Used for Tobacco Control’“, Dec. 27-28; “Tobacco bankruptcies, and what comes after” (state gov’ts, trial lawyers would become cigarette producers), Dec. 13; “How the tobacco settlement works” (the more cigarettes sold, the more money states get), Nov. 2; “Addictive tobacco money” (states sued over alleged burden on their taxpayers — so are they using the proceeds to cut taxes?), Sept. 7; “Collusion: it’s an AG thing” (terms of settlement cartelize cigarette industry), Jul. 29. Also see Walter Olson, “Puff, the magic settlement“, Reason, Jan. 2000. 

‘Tough tobacco laws may not deter kids’“, Jun. 7-9, 2002; “Blind newsdealer charged with selling cigarettes to underage buyer“, Sept. 16, 1999.

Sin-suit city” (Banzhaf), Jun. 10, 2002. 

Ad model sues tobacco company“, May 1-2, 2002. 

Australian party calls for banning smoking while driving“, Jun. 3-4, 2002; “‘Positive nicotine test to keep student from prom’” (over-18 student, off-premises consumption), Apr. 26-28, 2002 (& update May 10-12: school backs down); “Judge orders woman to stop smoking at home“, Mar. 27-28, 2002; “‘Smokers told to fetter their fumes’” (smoking in homes that bothers neighbors), Nov. 26, 2001; “Utah lawmakers: don’t smoke in your car” (when kids present), Oct. 5-7, 2001; “Apartment smoking targeted“, Jan. 3, 2000. 

Australian party calls for banning smoking while driving“, Jun. 3-4, 2002 (document retention case); “International tobacco suits: not quite such easy pickings“, Feb. 1-3, 2002; “‘Saudi Arabia finally gets tough on terrorism!’“, Dec. 10, 2001; “More from Judge Kent” (Bolivian suit), Aug. 3, 2001; “Smoker’s suit nixed in Norway“, Dec. 18-19, 2000; “They call it distributive justice” (government of Saudi Arabia sues tobacco cos.), Nov. 16, 2000; “Spreading to Australia?“, Dec. 29-30, 1999; “Israeli court rejects cigarette reimbursement suit“, Oct. 7, 1999. 

Veeps ATLA could love” (Durbin, D-Ill., as guardian of tobacco lawyers’ fees), July 7, 2000 (& see Apr. 25, 2002). 

“Competing interests: none declared”.  “The unconflicted Prof. Daynard“, April 21-23, 2000 (& update: letters, Jan. 2001, June 2001; Aug. 2, Dec. 17, 2001). 

Federal tobacco suit: our views:‘Bush budget surprise: $25M for tobacco suit’“, Feb. 20, 2002; “Judge throws out half of federal tobacco suit“, October 2, 2000; “Good news out of Washington…” (House votes to cut off funding for suit), June 21, 2000 (& update June 26: action reversed, funds approved); “Feds: dissent on smoking = racketeering“, Sept. 23, 1999; “Guest column in Forbes by Overlawyered.com‘s editor“, Oct. 25, 1999. 

Prison litigation: ‘Kittens and Rainbows Suites’” (cellmate’s smoking violates rights), Jan. 11-13, 2002. 

Boeken v. Philip Morris:Boeken record“, June 19, 2001; “$5,133.47 a cigarette“, Jun. 11, 2001; “Tobacco plunder in Los Angeles” ($3 billion damage award), Jun. 8-10, 2001. 

Federal tobacco suit: others’ views:Columnist-fest” (Jacob Sullum), Jun. 22-24, 2001; “Blatant end-runs around the democratic process” (former Labor Secretary Robert Reich), Jan. 15-16, 2000; “Dave Barry on federal tobacco suit” (plus novelist Tom Clancy’s critique), Oct. 26, 1999; “‘This wretched lawsuit’” (Jonathan Rauch in National Journal ), Oct. 13, 1999; “Feds’ tobacco shakedown: ‘A case of fraud’“, Sept. 29, 1999 (roundup of editorial pages); “Feds as tobacco pushers” (columnist Andrew Glass recalls encouragement of smoking in U.S. Army), Sept. 24, 1999; “Hurry up, before the spell breaks” (leading plaintiff’s lawyer wants feds to sue fast since public losing interest), Sept. 24, 1999.

Regulation by litigation:Tobacco- and gun-suit reading” (law prof Michael Krauss), Aug. 21-22, 2000; “Convenient line at the time” (tobacco is unique, said state attorneys general — sure), May 15; “Stuart Taylor, Jr., on Smith & Wesson deal” (“Guns and Tobacco: Government by Litigation”), Apr. 11, 2000; “Arbitrary confiscation, from Pskov to Pascagoula” (Michael Barone in U.S. News on threat to rule of law), Jul. 24-25, 1999; “Guns, tobacco, and others to come” (Peter Huber in Commentary on the new mass-tort cases as “show trials”), Jul. 20; “‘A de facto fourth branch of government’” (prominent trial lawyer Wendell Gauthier’s view of plaintiff bar’s role), Jul. 4, 1999. 

Dewey deserve that much?“, Mar. 6, 2002; “Health plans rebuffed in bid to sue cigarette makers“, Jan. 11, 2000. 

Terrorists, American business execs compared“, Sept. 28-30, 2001. 

Columnist-fest“, Jun. 22-24, 2001 (Amity Shlaes on asbestos synergy case); “Best little forum-shopping in Texas” (state’s Medicaid suit got filed in Texarkana, contributing $6.1 million to local economy), Aug. 27, 1999. 

The Kessler agenda” (former FDA chief calls for cigarette ban), Jan. 12-14, 2001; “Kessler rebuked” (FDA claim of authority over tobacco), March 27, 2000. 

Updates” (baby Castano suit nixed in N.Y.), Dec. 26-29, 2000. 

Wal-Mart’s tobacco exposure“, Sept. 25-26, 2000; “The Wal-Mart docket” (sued over tobacco sales), July 7, 2000.

Another billion, snuffed” (antitrust lawsuit between snuffmakers), May 10, 2000. 

Hollywood special: ‘The Insider’“, Mar. 30, 2000. 

Because they still had money” (Hausfeld’s price-fixing suit), Mar. 2, 2000. 

Tobacco lawyers’ lien leverage“, Feb. 29, 2000. 

Feds’ tobacco hypocrisy, cont’d: Indian ‘smoke shops’“, Jan. 25, 2000; “Do as we say, please” (Indian tribes, after profiting immensely from tax-free smoke shops, turn around and sue suppliers), Jul. 14, 1999. 

The joy of tobacco fees“, Jan. 20, 2000.

Calif. state funds used to compile ‘enemies list’“, Jan. 5, 2000.

‘Trial lawyers on trial’” (Trevor Armbrister, Reader’s Digest), Dec. 23-26, 1999.

Philadelphia Inquirer Tech.life: ‘Web Winners’” (this page is recommended), Dec. 15, 1999.

Ohio tobacco-settlement booty“, Nov. 8, 1999.

Public by 2-1 margin disapproves of tobacco suits“, Nov. 5-7, 1999. 

Not-so-Kool omen for NAACP suit“, Nov. 1, 1999. 

Minnesota to auction seized cigarettes“, Oct. 21, 1999. 

Reform stirrings on public contingency fees“, Oct. 15, 1999.

Big guns” (tobacco example shaped gun litigation), Oct. 5-6, 1999.

Plus extra damages for having argued with us” (“lesson of tobacco”: you can get punished for defending your product), Aug. 19, 1999. 

‘Settlement bonds’: are guns next?” (how Wall Street finances expropriation of industries), Aug. 5, 1999.


Do the tobacco wars that began in the mid-1990s represent an unprecedented triumph for public health?  Are they an inevitable response to legislative gridlock on smoking policy?  Or are they our legal system’s own updated version of the Gilded Age scandals that brought American government into disrepute a century ago, siphoning billions of dollars of publicly obtained money into the hands of politically connected attorneys?  Commentaries on Overlawyered.com (above) may help you decide.  In the mean time, the following links offer a way into the wider tobacco controversy: 

Anti-tobacco groups, most of which are supportive of litigation as well as other coercive government actions aimed at curtailing tobacco sale and use, are well represented on the web.  They include Tobacco.org, federally funded antitobacco activist Stanton Glantz’s Tobacco Control Archives, Americans for Non-Smokers’ Rights, Action on Smoking and Health, and the American Council on Science and Health. Tobacco.org’s links list is especially comprehensive. The empire associated with Prof. Richard Daynard, participant in tobacco suits, oft-quoted expert, and professor at Northeastern U., includes the Tobacco Products Liability Project and Tobacco Control Resource Center, as well as the State Tobacco Information Center.  The Castano Group, a vast joint venture of trial lawyers cooperating to file tobacco class actions, maintains a website that is distinctly uninformative (unless you’re a lawyer/member or a cooperative pressie).

Relatively neutral sites include Yahoo Full Coverage.

Critics of the anti-tobacco crusade often note that it curtails individual liberty, freedom of contract and freedom of association.  As part of its Breaking Issues series (“Fining Smokers“), Reason magazine includes a list of online articles skeptical of the government’s role in the tobacco field, while Reason senior editor Jacob Sullum is the author of 1998′s For Your Own Good : The Anti-Smoking Crusade and the Tyranny of Public Health.  At the libertarian-oriented Cato Institute, Robert Levy has criticized “The Tobacco Wars“, written that “States Share Blame for Tobacco Lawyers’ Greed“, and called tobacco settlements “Dangerous to Your Liberty“; the state Medicaid suits, he argues, are “Snuffing Out the Rule of Law“. Cato’s Jerry Taylor describes the battle as “The Pickpocket State vs. Tobacco“. “The Anti-Tobacco Crusade” by Joseph Kellard, Capitalism magazine, March 1998, argues from a viewpoint supportive of Ayn Rand’s Objectivism. In Colorado, the Independence Institute maintains a Center for Personal Freedom run by Linda Gorman which draws the connection to other paternalist crusades on issues like drinking, seatbelt use and mandatory helmet laws.  The Heritage Foundation’s Todd Gaziano makes the case that a proposed federal lawsuit against tobacco companies is “elevating politics over law” (July 30, 1999 Backgrounder).  Overlawyered.com‘s editor has taken exception to the retroactivity of the crusade, to its manipulative treatment of children, and to the hardball or demagogic tactics used in the Castano and Engle cases. Rep. Chris Cox (R-Calif.) delivered a notable critique of the tobacco litigation at a Congressional hearing held Dec. 10, 1997 (no longer online).

An extensive site offering an aggressive defense of smoking and smokers, along with a large collection of links, is Forces International (“Fight Ordinances and Restrictions to Control and Eliminate Smoking”).


July 19-21 – Disabled lap dancing just the start. Our recent item (Jul. 16-17) on demands for accessibility in lap-dancing facilities reminded an alert Australian reader of a recent case from his country in which a disabled complainant filed charges against the proprietors of a “swinging house party”, which was found in unrelated proceedings to be operating as an unlicensed brothel, for excluding her because of her status as a wheelchair user. (Ball v Morgan & Anor [2001] FMCA 127)(adult content warning, though it’s a court opinion). (DURABLE LINK)

July 19-21 – Stolen silence? Via WSJ OpinionJournal Best of the Web Today: “The London Sun reports that Nicholas Riddle, who heads a firm that owns the copyright to the late John Cage’s composition ’4′ 33″ ‘–which consists of four minutes, 33 seconds of silence–is suing ‘pop guru’ Mike Batt, whose new band, the Plantes, has just released an album with a track called ‘A One Minute Silence.’ Riddle alleges that Batt violated Cage’s copyright. ‘John always said the duration of his piece may be changed, so the Planets’ piece doesn’t escape by virtue of its shorter length,’ Riddle tells the paper. ‘We want our royalties.’” Oh please, let this be a Monty Python skit and not an actual lawsuit (Thomas Whitaker, “Silence is old ‘un”, The Sun (London), Jul. 18). (DURABLE LINK)

July 19-21 – Enron’s other helpers. If Arthur Andersen & Co. is going to get run out of business for approving Enron’s dubious financial deals, why is its outside law firm, Vinson & Elkins, unlikely to face similarly devastating consequences for approving and helping structure the same deals? Well, one reason is that accountants are conceived of as having broad obligations to the general public, while lawyers mostly aren’t. Rather convenient for the lawyers, don’t you think? Julie Hilden makes a valiant effort to defend the double standard as a principled one (“Scummery Judgment”, Slate, Jun. 21). (& see letter to the editor, Oct. 23) (DURABLE LINK)

July 18 – “Family of boy injured by leopard may sue”. “In April, Eric River, 11, sneaked into the Rosamond Gifford Zoo at Burnet Park with friends, tried to feed and pet a snow leopard, got 10 deep lashes to his face, arm and back, and received 500 stitches. Now, three months later, his mother, Terry Wells, is threatening to sue the zoo’s owner, Onondaga County, for failing to properly secure and police the zoo after hours.” River and three friends managed to get into the zoo by scaling one 8-foot fence, squeezing through a gap in another, and scaling a 4-foot fence before finally approaching the leopard in its cage. (Teri Weaver, Syracuse Post-Standard, Jul. 17) (see Sept. 21, 1999). (DURABLE LINK)

July 18 – “Trauma center reopens doors”. The only trauma center in southern Nevada has reopened, “ten days after a state malpractice insurance crisis forced its closure”. (Las Vegas Review-Journal, Jul. 14; Joelle Babula, “University Medical Center: Trauma center closing”, Las Vegas Review-Journal, Jul. 2; Steve Kanigher, “Trauma cases to shift to nearest hospital”, Las Vegas Sun, Jul. 2; William Booth, “Las Vegas Trauma Center Closes as Doctors Quit”, Washington Post, Jul. 4; Las Vegas Review-Journal, coverage at a glance). Crisis continues in Mississippi: Reed Branson, “Doctors shutting practices amid epidemic of lawsuits”, GoMemphis.com, Jul. 11; John Porretto, “Exodus of doctors causing crisis for moms-to-be in Mississippi”, AP, Jul. 11. Texas: Mary Ann Roser, “Doctors at a crossroads”, Austin American-Statesman, Jun. 17. (DURABLE LINK)

July 18 – “Edwards’ fund raising a strong suit”. Why are we not surprised that he’s vaulted ahead of some better-known Democrats on the money-raising front? “Reports released Monday show that two fund-raising committees controlled by Edwards raised a combined $2.6 million in the second quarter of this year and that the North Carolina Democrat now has more than $4.4 million in the bank. … A News & Observer analysis of Edwards’ PAC money showed that more than 77 percent of it came from lawyers or law firms.” (John Wagner, Raleigh News & Observer, Jul. 16). All five of the top contributors to the Edwards campaign are plaintiff’s law firms, the list topped by Girardi & Keese of Los Angeles and Baron & Budd of Dallas, both familiar to longtime readers of this site. (David Brown, “The Candidate”, The Recorder, Jun. 14). (DURABLE LINK)

July 16-17 – By reader acclaim: quadriplegic sues strip club over wheelchair access. Edward Law of Orlando, Fla., who is quadriplegic, “has sued a strip club, charging that it violates the Americans with Disabilities Act because the lap dance room does not have wheelchair access.” In addition to suing the Wildside Adult Sports Cabaret of West Palm Beach, Law has also recently sued a second strip clup, “an Orlando restaurant and a Daytona Beach Harley-Davidson motorcycle shop”; we don’t know yet whether to assign his filing activities to this category. (“Orlando quadriplegic sues strip club over wheelchair access”, AP/Palm Beach Post, Jul. 15)(for more on lap-dance handicap accommodation, see Sept. 27-28, 2000). (DURABLE LINK)

July 16-17 – Mercury in dental fillings. For well over a century dentists have used a mixture of metals including mercury in standard tooth fillings, and both the U.S. Public Health Service and Consumers Union have declared that patients have no grounds for alarm that the fillings pose a risk to health. That hasn’t convinced a small if longstanding body of dissenters who hold that exposure to even trace amounts of the heavy metal must be having toxic effects on users’ bodies. The dispute has lately turned litigious, with Van Nuys, Calif. personal injury and environmental attorney Shawn Khorrami spearheading several suits which accuse the American Dental Association and dentists of wrongly promoting the material, and the ADA striking back with a defamation suit. (Doug Bandow, “Killer teeth?”, Cato Institute Dailies, Jun. 28; Raymond J. Keating, “Lawsuits and Legislation Causing Pain for Dentists”, Small Business Survival Committee, Jun. 7; AltCorp (anti-mercury testing firm); Stephen Barrett, “The Mercury Amalgam Scam”, QuackWatch.com, last revised Apr. 23; search QuackWatch on “amalgam”; American Dental Association on ADA v. Khorrami). (DURABLE LINK)

July 16-17 – Hizzoner’s divorce, settled at last. “Anyone who’s been appalled at the depths to which the parties stooped in this Hanover/Giuliani split just hasn’t been divorced from a millionaire often enough. As big splashy divorces go, this was no uglier than most.” (Dahlia Lithwick, “Hats Off to Rudy”, Slate, Jul. 12). (DURABLE LINK)

July 16-17 – “Spanking Client Not Legitimate Trial Prep Tactic”. Just plain bizarre: U.S. District Judge Robert N. Chatigny has ruled that an attorney’s malpractice insurer is not obliged to pay out in a case in which Derby, Ct. attorney Milo J. Altschuler allegedly took a client across his lap and spanked her before a court appearance. “The woman claimed Altschuler, before removing her panties and stockings, told her he needed to spank her so the judge didn’t think she was lying.” Judge Chatigny ruled that the spanking did not constitute the rendering of professional services, although Altschuler “acknowledged that he used [threats of spanking] in representing more than a dozen other clients to make them ‘more afraid of him than they would be of the prosecutor.’” (Scott Brede, Connecticut Law Tribune, Jul. 15). (DURABLE LINK)

July 15 – “Morales’ $1 Million Tobacco Fee Under Fire”. “Former Attorney General Dan Morales told lawyers that a $1 million contribution to his political campaign fund was a condition for joining his anti-tobacco legal team, a Houston lawyer testified in a newly released document.” In a 1999 interview that has only now been made public in court proceedings, an assistant to Texas Attorney General John Cornyn questioned Houston attorney Wayne Fisher, a former president of the State Bar and a former president of the Texas Trial Lawyers Association, under oath. Fisher “said Morales outlined two separate requirements during a meeting he had with the then-attorney general in 1995. Fisher said one condition of employment was to ‘front’ the legal expenses and a second was to ‘commit to contribute $1 million to (Morales’) political campaign — to (Morales’) political campaign fund, as I recall it.’” Fisher “chose not to join Morales’ legal team”; he also “recalled wondering later if the meeting was a ‘sting operation.’” Fisher’s account seems to buttress earlier recollections by noted plaintiff’s attorney Joe Jamail, who also did not join the state’s team (see Sept. 1-3, 2000, May 22, 2000, June 21, 2001, Aug. 29-30, 2001, Nov. 12, 2001).

The five law firms eventually hired by Morales are all “major contributors to Democratic candidates and causes”. Michael Tigar, attorney for the five, denies that any of their tobacco fees or expenses went to Morales but concedes that “some was paid to Austin political consultant George Shipley. Tigar said all the payments to Shipley were first reviewed by University of Texas law professor Charles Silver, who was retained by the lawyers as an ethics adviser.” (Clay Robison, Houston Chronicle, Jul. 12). (DURABLE LINK)

July 15 – Paper currency should accommodate blind, suit argues. “The American Council of the Blind, which seeks to improve conditions for the visually impaired, has sued the Treasury Department to force its way into the currency revamping process. …The group is not promoting a specific change that would help blind and sight-impaired Americans sift through their money, but hopes the government will study an array of options that would be helpful. A major step could be offering denominations in different colors or sizes with large-print features, like many other countries, [Ralph] Brunson said. Braille and textures also are possibilities, although the markings are prone to wearing off. ‘We did not specify a particular option because, primarily, at this point we’re trying to get the dialogue going,’ Brunson said.” (Mark Babineck, “Blind Group Sues U.S. over Currency”, AP/FindLaw, Jul. 1). (DURABLE LINK)

July 15 – New civil rights target: “linguistic profiling”. With assistance from a Ford Foundation grant, the National Fair Housing Alliance and Stanford education and linguistics professor Dr. John Baugh have launched a project “to study the impact of linguistic profiling on housing discrimination. This summer, Baugh will track the instances of bias that the housing markets show toward speakers of non-standard English over the telephone. Baugh says speakers who do not ‘sound white’ often are discriminated against over the telephone. ‘Even though the courts are reasonably well equipped to prosecute cases of face-to-face discrimination,’ says Dr. Baugh, ‘they have a hard time understanding and applying the law to linguistic profiling, and that’s where this research will help.’” “National Study on Linguistic Profiling in Housing Announced”, Jun. 26)(via Scott Norvell, FoxNews.com, Jul. 1). (DURABLE LINK)

July 12-14 – Welcome Salon.com readers, Bill O’Reilly listeners. We’re cited in Janelle Brown’s excellent article on parental lawsuits against teachers (“L is for Lawsuit”, Jul. 12) which mentions our subpage on overlawyered schools. And our editor is appearing today (Fri.) on Bill O’Reilly’s popular radio show to discuss the case of a New York City jury’s award to a woman who lay down on the subway tracks (see Jun. 26-27), along with other cases featured on our personal- responsibility subpage. Update: and welcome BBC-5 listeners, for whom our editor taped an interview arising from the Salon piece (DURABLE LINK)

July 12-14 – Credibility up in smoke? Environmentalist groups have strenuously denied that their use of litigation to stall road building, logging and the construction of firebreaks worsened this year’s raging wildfires out West (see Jul. 1-2). But it turns out that a recent General Accounting Office report, much cited by the enviro groups to show that they don’t sue often, actually may show nothing of the sort. “Environmental appeals delayed 48 percent of the [Forest Service]‘s fire-suppression projects in fiscal 2001 and 2002, thereby stalling efforts to clear the brush and small trees that fuel the catastrophic wildfires plaguing the West, according to an internal Forest Service report obtained by The Washington Times. The report, slated for release [Thursday], found that 155 of the agency’s 326 plans to log overgrown, high-risk national forests were stymied by appeals. In Arizona and New Mexico, sites of some of this summer’s worst wildfires, that figure rose to 73 percent, and climbed to 100 percent in the Pacific Northwest”. (Valeria Richardson, “Forest Service Says Activists Played Role in Fires,” Washington Times, Jul. 11; Kimberley A. Strassel, “Truth Under Fire “, Wall Street Journal/ OpinionJournal.com, Jul. 11). (& see letter to the editor, Oct. 23) (DURABLE LINK)

July 12-14 – Read the label, then ignore it if you like. “Two carpet installers who admit they read the label of an adhesive they used, admit they understood the adhesive was flammable and should not be used inside, used it inside anyway, caused an explosion, were burned badly, sued, and won $8 million dollars.” (Phil Trexler, “2 installers get millions in blast suit”, Akron Beacon Journal, Jul. 10) (link and description via MedPundit, Jul. 10). (DURABLE LINK)

July 12-14 – Financial scandals: legislate in haste. The “chief sponsor of the House [financial-reform] legislation, Republican Michael G. Oxley of Ohio … complained that some aspects of the Sarbanes bill appeared to be turning into ‘a gravy train’ for trial lawyers.” (Richard A. Oppel Jr., “Senate Backs Tough Measures to Punish Corporate Misdeeds”, New York Times, Jul. 11). House Republicans are particularly critical of provisions which, in line with a long-term goal of the plaintiff’s bar, increase the time permitted to bring securities fraud lawsuits. The Mobile Register editorially warns that a number of ideas emanating from the Senate “would be a huge boon to voracious plaintiffs’ attorneys. And the last thing the nervous stock market needs, now or ever, is to worry about companies being ruined by ever-more creative lawsuits whose practical effect would do far more to enrich the lawyers than to protect the interests of individual investors.” (“Bush right, Shelby not, on business reform” (editorial), Mobile Register, Jul. 10). “Robert Musil” has some thoughts on the newly popular idea of requiring CEOs to certify their company’s financial filings on penalty of perjury (Jul. 7). And before assuming that it was management malfeasance alone that destroyed the market value of such companies as WorldCom and Adelphia, it would be wise to note that Europe, without benefit of major scandal, has managed to see most of the value of its telecom stocks evaporate since the sectoral bubble burst, with historic enterprises like Deutsche Telekom, France Télécom and Royal KPN of the Netherlands losing 80 or 90 percent of their value, and Britain’s BT doing not much better (Edmund L. Andrews, “Europe Shares Pain of the Fall in Phone Stocks”, New York Times, Jul. 11). And see Steve Chapman, “Real and phony fixes for corporate corruption”, Chicago Tribune, Jul. 11). (DURABLE LINK)

July 12-14 – “Court Tosses ‘Sopranos’ Suit”. Following an appellate court’s ruling against them, the Italian-American Defense Association has dropped its suit against HBO charging that “The Sopranos” offends the dignity of Italian Americans in supposed violation of the Illinois Constitution’s “individual dignity” clause. Score one for free speech (N.Y. Daily News, Jul. 2)(see Apr. 6-8, 2001). (DURABLE LINK)


November 19-20 – New frontiers in discrimination law: Harleys among the cyclamens. Lawmakers in Ohio, South Carolina and several other states are pushing legislation that would prohibit businesses from turning away customers on motorcycles. Georgia state Sen. Joey Brush, who rides a Harley-Davidson, “introduced the legislation because of a long-running dispute with Calloway Gardens, a private, nonprofit horticultural garden that doesn’t allow bikers to drive onto the grounds. The ban, in place for the garden’s entire 49-year existence, is meant to protect the serenity and peace for which the grounds are known, said spokeswoman Rachel Crumbley. ‘We feel it’s not a civil right to ride a motorcycle wherever you please,’ Crumbley said.” An Ohio rider who supports such legislation “said a waitress at a restaurant near Cincinnati once placed him and his wife in a corner away from other patrons when the couple pulled up wearing leather boots, chaps and vests.” But the biker community, which in the past has often sided with libertarian causes such as opposition to mandatory helmet laws, is far from unanimous on this one: “As a business owner, they should have right to decide who they want,” says spokesman Steve Zimmer of Ohio’s pro-biker ABATE group — clearly someone who hasn’t forgotten that biking is supposed to be about freedom. (Andrew Welsh-Huggins, “Laws Seek to Protect U.S. Bikers”, AP/Yahoo, Nov. 14). (& letters to the editor, Feb. 28) (DURABLE LINK)

November 19-20 – Can’t find the arsonist? Sue the sofa-maker. “With the two-year statute of limitations almost up, lawyers representing victims of New Jersey’s Seton Hall University dormitory fire are working frantically to find parties to sue.

“The fire, which authorities believe was intentionally started, broke out in the Boland Hall dormitory on Jan. 19, 2000, killing three students and injuring 58 others. Seton Hall, which enjoys charitable immunity from suit, has settled out of court with some of the plaintiffs. Still, lawyers contemplate suits against other people who may have contributed to the conflagration — the arsonists, the maker of the sofa that ignited and any other potentially responsible parties.” (Charles Toutant, “Seton Hall Fire Victims’ Lawyers Still Scrambling to Identify Defendants”, New Jersey Law Journal, Nov. 14) (see June 1, 2000). (DURABLE LINK)

November 19-20 – By reader acclaim: football’s substance abuse policy challenged. “New England wide receiver Terry Glenn has sued the NFL, claiming a disability makes it difficult for him to adhere to certain rules in the league’s substance abuse policy. … Glenn filed the complaint under the Americans with Disabilities Act, but it did not specify what disability Glenn suffers. Glenn claims he should not have been suspended by the NFL for the first four games of the season for violation of the substance abuse policy.” (“Glenn’s suit doesn’t specify disabilities”, AP/ESPN, Nov. 4). Plus: reader Rick Derer, outraged by the Casey Martin episode, has put up an ADA horror stories website to call attention to what he terms “the worst law ever foisted on the American people”.

November 19-20 – Municipal gun suits on the run. Cause for thanksgiving indeed: the lawless and extortionate municipal gun-suit campaign has been encountering one setback after another. “In a major victory for gun manufacturers, the 3rd U.S. Circuit Court of Appeals on [Nov. 16] upheld the dismissal of a suit brought by Camden County, New Jersey, that accused gun makers of creating a ‘public nuisance’ and sought to recoup the governmental costs associated with gun-related crimes.” Arguing the losing side were radical law prof David Kairys and class-action firm Berger & Montague. The three-judge panel was unanimous. (Shannon P. Duffy, “3rd Circuit Shoots Down Gun Suit Theory”, The Legal Intelligencer, Nov. 19). The city of Atlanta is desperately trying to keep its anti-gun suit alive in the face of legislation enacted by its parent state of Georgia making it as explicit as humanly possible that the city has no authority to press such a suit (Richmond Eustis, “Atlanta Asks State Appeals Court to Keep Alive Suit Against Gun Makers”, Fulton County Daily Report, Nov. 15).

Yale law professor Peter Schuck describes the gun lawsuits as based on the “most tenuous” theories yet of government rights of recoupment (“subrogation”) and tort law as “one of the last places” we should look to resolve the policy issues of gun control (“Smoking Gun Lawsuits”, American Lawyer, Sept. 10). And Bridgeport, Conn. mayor Joseph Ganim, who had taken perhaps the highest profile among Northeastern mayors in support of the gun suits, is likely to be less heard from for a while given his indictment last month on two dozen felony counts including extortion, bribery and mail fraud. (He denies everything.) (John Christoffersen, “In Connecticut, a growing and unwelcome reputation for corruption”, AP/Charleston (W.V.) Gazette, Nov. 16; Chris Kanaracus et al, “Ganim on the Spot” (pre-indictment coverage), Fairfield County Weekly, undated). See also Kimberley A. Strassel, “Bummer for Sarah Brady”, OpinionJournal.com, Nov. 15 (expressing optimistic view that municipal gun suits have been contained). (DURABLE LINK)

November 16-18 – Profiling perfectly OK after all. “State highway safety officials said they have received a $700,000 federal grant to help them crack down on two groups of chronic violators of the state’s seat belt law: drivers and passengers of pick-up trucks, and all male drivers and passengers between 18 and 55. … [Louisiana Highway Safety Commission Executive Director James] Champagne said state and federal studies have consistently shown pickup drivers and all male drivers are less likely to buckle up than any other groups of drivers or front-seat passengers. State law requires both the driver and front-seat passengers of vans, sports utility vehicles, cars and trucks to use seat belts. … Asked if the targeting of males and pickup drivers and passengers is profiling of a certain group, Champagne said, ‘Absolutely.’” To recap, then: the federal government strictly bans giving extra attention to 25-year-old males from Saudi Arabia at airport check-in. While they’re driving to the airport, on the other hand, it positively encourages them to be profiled. Perhaps the explanation is that it’s willing to swallow its scruples in order to combat really antisocial behavior — like failing to wear seat belts, as opposed to hijacking planes into buildings. (Ed Anderson, “Police to harness seat belt scofflaws”, New Orleans Times-Picayune, Nov. 10 — via InstaPundit). Meanwhile, the American Civil Liberties Union is soliciting racial-profiling plaintiffs in New Jersey. “The ACLU billboard, which went up last month, shows a photograph of two minority men and between them the words ‘Stopped or searched by the New Jersey State Police? They admit to racial profiling. You might win money damages,’ the sign reads. The ad includes the ACLU’s toll-free number.” (“Billboards in New Jersey Ask for Trooper Praise, Not Profiling Complaints”, FoxNews.com, Nov. 14).

November 16-18 – EEOC approves evacuation questions for disabled. To the relief of many in the business community, the Equal Employment Opportunity Commission has announced that it is not unlawful to ask workers about the state of their health for the purpose of formulating plans for emergency building evacuations. The September attacks called attention to the difficulty experienced in disaster situations by evacuees with such conditions as blindness, paraplegia, extreme obesity, and asthma. While employers may ask about problems that might impede evacuation, they should not insist on getting actual answers; EEOC officials recommend that they let each worker elect whether to disclose the information. The Americans with Disabilities Act has generally been interpreted as conferring on employees a broad legal right to conceal health problems from their employers. (Kirsten Downey Grimsley, “EEOC Approves Health Queries”, Washington Post, Nov. 1).

November 16-18 – Et tu, UT? Perhaps envying California its litigious reputation, the Supreme Court of Utah has ruled that it will not enforce releases in which parents agree to waive their children’s right to sue for negligence. The case involved a child thrown from a rented horse; the mother had signed a release before the accident, but then decided she wanted it invalidated so she could sue anyway. Attorney James Jensen, who represented defendant Navajo Trails, “listed many activities that now may be affected or curtailed, including school field trips, religious organization youth activities, scouting programs, amusement parks and ski resorts. ‘Anybody that provides recreational activities to minors,’ he said.” (Andrew Harris, “Utah High Court Says No Release of Liability to Children”, National Law Journal, Nov. 12).

November 15– “Poor work tolerated, employees say”. We keep hearing that if we were really serious about airport security we’d kick out those ill-paid Argenbright bag screeners and swear in a new 28,000-strong corps of federal employees to replace them. But a “new study concludes that federal workers themselves view many of their co-workers as poor performers who are rarely disciplined. The survey of 1,051 federal workers, conducted for the Brookings Institution’s Center for Public Service prior to the Sept. 11 terrorist attacks, found that on average federal employees believe 23.5 percent of their colleagues are ‘not up to par.’ Meanwhile, only 30 percent believe their organization does a very or somewhat good job of disciplining poor performers.” Those numbers are worse than the ones you get when you poll employees of private firms. At least when Argenbright botches things you can kick it out in favor of another contractor (Ben White, Washington Post, Oct. 30; Gregg Easterbrook, “Fighting the Wrong Fight”, The New Republic Online, Nov. 13).

November 15 – Lawyers’ immunity confirmed. In a dispute arising out of a developer’s plan to buy Fisher Island, home to many celebrities and wealthy persons, a Florida court has ruled that the developer cannot pursue a countersuit for tortious interference against residents who filed lawsuits aimed at derailing the deal, even if it can show they knew the suits to be unmeritorious. The court relied on a 1994 case in which the Florida Supreme Court ruled that an attorney’s acts in the course of litigation are subject to an “absolute” privilege: “We find that absolute immunity must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior such as the alleged misconduct at issue, so long as the act has some relation to the proceeding.” Or, as the Miami legal paper puts it, “litigation itself is immune from litigation”. Put differently, people engaged in litigation boast an “absolute immunity” to engage in injurious behavior that would have a remedy at law if you or I tried it (Julie Kay, “Lawsuits of the Rich and Famous — and Their Two Dozen Law Firms”, Miami Daily Business Review, Nov. 1).

November 15 – Exxon Brockovich vs. Erin Valdez. The Ninth Circuit has struck down as excessive an Alaska jury’s $5 billion punitive award against Exxon over the Valdez oil spill, sending the case back for further litigation; compensatory damages are unaffected by the ruling (Henry Weinstein & Kim Murphy, “Court Overturns $5-Billion Judgment Against Exxon in ’89 Alaska Oil Spill”, L.A. Times, Nov. 8; Yahoo Full Coverage)(update Dec. 30, 2002: judge cuts award to $4 billion). Meanwhile, toxic-tort celebrity Erin Brockovich is helping spearhead a new effort to recruit plaintiffs from among the more than 15,000 workers who took part in the cleanup effort a dozen years ago, some of whom believe that it caused their health to take a turn for the worse. A Los Angeles Times account, after sympathetically relaying what would seem to be the most striking such cases the plaintiff’s team could come up with, concedes that “most health officials remain unconvinced that the cleanup left anyone sick”. (Nick Schulz, “Busy Bee Brockovich Looking to Sting Again”, TechCentralStation, Nov. 9; Kim Murphy, “Exxon Oil Spill’s Cleanup Crews Share Years of Illness”, L.A. Times, Nov. 5; Mary Pemberton, “Erin Brockovich probes Exxon complaints”, AP/ Anchorage Daily News, Nov. 6).

November 14 – “Rejoice, rejoice”. “[Y]esterday’s liberation of Kabul and much of the rest of Afghanistan is a great victory. … The moving scenes from the Afghan capital remind us … that most believing Muslims reject the rigorist insanity that bin Laden and the Taliban promote in their name, and are happy to worship God without having to wear a beard or a burqa. They can sing and dance again; women can work, and children can learn. The Taliban’s scorched-earth devastation of so many Afghan villages reveals their contempt for their own people, and their desertion of so many of their own Arab and Pakistani jihadis shows their capacity to betray. … Today, though, everyone who cast doubt on the possibilities of success and everyone who sneered at American ‘gung-ho’ should observe a period of silence. The rest of us should, to use a famous phrase from another war, ‘just rejoice rejoice’”. ((editorial), Daily Telegraph, Nov. 14; Paul Watson, “Taliban torturers on the run”, L.A. Times, Nov. 14; Christopher Hitchens, “Ha ha ha to the pacifists”, The Guardian, Nov. 14; Dexter Filkins, “In Fallen Taliban City, a Busy, Busy Barber”, New York Times, Nov. 13).

November 14 – Insurance market was in trouble before 9/11. With alarms being heard about an impending crisis in the availability of commercial insurance, it’s worth noting for the record that conditions were deteriorating rapidly in that market even before Sept. 11, mostly because insurers were pulling back from liability exposures: “Among the lines tightening the most are products liability, umbrella liability, contractor liability and nursing home liability, insurers and brokers say,” reported the July 2 issue of the trade publication Business Insurance. Also in scarce supply was coverage for “anything with an occupational disease exposure, like insulation and cell phones,” said one industry observer, Tom Nazar of Near North. “Generally, premiums for most liability lines are increasing anywhere from 25% to 60%,” with transportation risks seeing rate hikes of 100-200 percent and nursing homes 150 percent, said another insurance exec — all this well before the WTC attacks hit carriers with the largest losses from a single insured event in history. (Joanne Wojcik, “Transportation takes biggest hit in hardening market”, Business Insurance, July 2 (online subscribers only), and other contemporaneous coverage in the same publication). Directors’ and officers’ liability was another big problem area, especially for companies in fields such as high tech and telecom, financial services and health care. “The risks facing the steepest premium increases are pharmaceutical companies, nursing homes and contractors, especially organizations located in the litigious markets of California, Illinois and New York, insurance executives said.” In workers’ comp, “loss severity continues to deteriorate”.

And then there was asbestos: an August Standard & Poor’s report indicated that insurers were setting aside an additional $5-10 billion this year for asbestos claims, above earlier amounts reserved. “The implications to the insurance community are potentially devastating,” says the report. “Other analysts and ratings agencies recently have estimated that the insurance industry would need to put up as much as $20 billion to $40 billion more to cover their asbestos exposure. In May, ratings firm A.M. Best Co. calculated that insurers have set aside $10.3 billion to pay additional asbestos claims, having already paid out $21.6 billion.” A not-insubstantial portion of those sums, as we know, will go to compensate persons who are not sick from asbestos and never will be — raising once again the question of why we don’t try harder as a society to reserve the limited pool represented by insurance for situations where it’s really needed (Christopher Oster, “Insurers to Set Aside Additional Billions For Asbestos Claims”, Wall Street Journal, Aug. 1 (online subscribers only)). On proposals to bail out insurance markets since the attacks, see Scott Harrington and Tom Miller, “Insuring against terror”, National Review Online, Nov. 5. (DURABLE LINK)

November 14 – “Diabetic German judge sues Coca-Cola for his health condition”. Why should American lawyers have all the fun? In a trial that began Monday in Essen, Germany, Hans-Josef Brinkmann, 46, a judge in the east German town of Neubrandenburg, says the beverage company is partly responsible for his developing diabetes after drinking two bottles of Coca-Cola a day for years. He further “disputes the contention of the drinks company that Coca Cola is a ‘flawless foodstuff’ … Brinkmann plans to bring a similar case against Masterfoods, manufacturers of Mars Bars, Snickers and Milky Way chocolate candy, in January.” Whether Herr Brinkmann wins or loses these suits, we hope he’ll come to America — we bet he’d have no trouble landing a job at one of our law schools. (AFP/Times of India, Nov. 14) (more).

November 13 – From the paint wars: a business’s demise, a school district’s hypocrisy. “Sherwin-Williams Co. acquired Mautz Paint Co. Thursday after the local company said it could no longer afford facing a costly lawsuit filed by the city of Milwaukee. Bernhard F. ‘Biff’ Mautz, the company’s chairman of the board, said negotiations to sell the [family-owned] firm intensified in April after the city of Milwaukee filed suit seeking more than $100 million in damages over the manufacture of lead-based paints decades ago.

“‘Although we believe the city’s case is meritless and Mautz will ultimately be absolved of any responsibility, for the first time in our history we were faced with years of litigation, which even if (the plaintiff was) unsuccessful, would destroy our small company,’ he said. …

“The sale price was not released, but Mautz President Dan Drury said it was discounted to reflect the costs of the lawsuit. Founded in 1892, Mautz employed 260 people at its 33 retail stores and manufacturing plant. It had sales of $32 million last year. …

“Wisconsin Manufacturers & Commerce said the sale of the one of Madison’s oldest businesses will make it more difficult for the state to attract new businesses. ‘This is a sad day in the state of Wisconsin,’ said James S. Haney, the organization’s president. ‘This is every business person’s worst nightmare. Mautz got in the gun sights of the contingency fee trial lawyers and the bureaucrats and now another homegrown locally owned business with strong ties to the community is gone.’” (“Mautz announces acquisition by Sherwin-Williams”, AP/Janesville (Wis.) Gazette, Nov. 9).

Meanwhile: In Houston, where contingency-fee lawyers have been recruiting local school districts to go after paint companies, the lawsuit filed by the Spring Branch School District claims that residual paint from decades past exposes students and teachers to “a substantial risk of lead poisoning” — a dramatic charge indeed. Which left Jon Opelt, executive director of Citizens Against Lawsuit Abuse Houston and the parent of a child in the district, wondering why “the school district has never notified me, as a parent, of the presence of any health or safety risks related to lead. No cautionary notes have been sent home with my children. No alarming studies have been released discussing the severity of the problem in our schools.’”

Which naturally raises the question: is there a genuine lead hazard, which the district has been covering up from parents, or just a phony hazard, which their lawyers are conjuring up in an effort to squeeze money from manufacturers? Opelt: “Ron Scott, a lawyer for the school district, is quoted in a Houston Chronicle article as saying: ‘This isn’t a panic issue. People don’t need to feel their schools are unsafe.’ Duncan Klussmann, a district administrator, told me, ‘Your child is not at risk.’ These are the very same people who signed onto a lawsuit that says there is a ‘substantial risk of lead poisoning.’ What are we to believe? District officials are telling parents their schools are safe but their lawsuit demands millions of dollars for addressing a dangerous situation caused by lead paint. Both cannot be true.” (CALA Houston website, “Parent Urges School District To “Get The Lead Out“, “Contrary to Other Reports“, David Waddell, “Why Should Safety Be a Secret?“, Annette Baird, “District: Lead-paint concerns in check”, Houston Chronicle, Oct. 17). (DURABLE LINK)

November 13 – Update: ousted quartet member wins damages. “A Pennsylvania judge has ordered three members of the Audubon Quartet to pay their former colleague David Ehrlich more than $600,000 in damages, adding yet another dramatic twist to the legal battle that has largely silenced the internationally acclaimed quartet since February 2000 and cost the group its home at Virginia Tech.” (Kevin Miller, “Ousted quartet member should receive damages, judge rules”, Roanoke Times, Oct. 16; “In Support of the Audubon Quartet“; summary of court opinion) (see June 5, 2000, June 14, 2001). Update May 10-12, 2002: defendants could lose house.

November 13 – Women’s rights: British law, or Islamic? According to columnist Theodore Dalrymple of The Spectator, a misguided multiculturalism has led authorities in the United Kingdom to adopt a hands-off policy toward some British Muslim families’ trampling of their young daughters’ rights (“The abuse of women”, Oct. 27).

November 12 – “Morales trying to ‘clear the air’ before campaign”. Many assumed the political career of former Texas attorney general Dan Morales was dead, dead, dead after allegations began flying in the papers about the circumstances under which he’d hired outside lawyers to represent the state in the tobacco affair and share one of the largest fee windfalls in history (see Sept. 1-3, 2000). But now Morales wants to run for the U.S. Senate seat being vacated by Phil Gramm and is insisting with new vehemence that he never acted improperly and that it’s all been a misunderstanding. Two of his lawyers have “asked a state district court in Austin to let Morales lay the groundwork for a possible defamation suit by taking the sworn testimony of four former associates. Morales wants to question John Eddie Williams Jr. of Houston — one of five trial lawyers who shared $3.3 billion in legal fees from the tobacco case — and three former assistants in the attorney general’s office — Harry Potter of Austin and Jorge Vega and Javier Aguilar of San Antonio. He indicated that Williams and Potter, who was actively involved in the tobacco suit, could be targets of any suit he may file.” Pull up a chair, this promises to be interesting (Clay Robison, Houston Chronicle, Nov. 7). Morales also continues to deny “allegations by Houston trial lawyer Joe Jamail that Morales improperly solicited $1 million from each of several lawyers he considered hiring for the tobacco suit.”

November 12 – Short-sellers had right to a drop in stock price. At least that’s the premise underlying this press release and lawsuit from a class action law firm seeking the right to sue on behalf of short-sellers who feel their speculative bets against the stock of Intelli-Check Inc. were stymied by the company’s allegedly over-sunny fiscal projections. (“Speziali, Greenwald & Hawkins, PC Announces the Filing of a Class Action Suit on Behalf of Short-Sellers of Intelli-Check, Inc. (Amex: IDN) Securities”, Yahoo/PR Newswire, Oct. 18).

November 12 – “U.S. Debates Info on Chemical Hazards”. “Separate hearings in the House and Senate [were] held this week to reassess the safety of chemical and industrial facilities in the light of recent terrorist attacks. A key policy at stake is the so-called ‘right to know’ law, which requires the federal government to publicly disclose sensitive information about facilities around the country that could be used by terrorists to target the most dangerous locations.” Jeremiah Baumann, a spokesman for the Nader-empire U.S. Public Interest Research Group, called for preserving public access to the sensitive information. “‘Let’s at least make the bad guys work for it,’ countered Amy E. Smithson, a chemical and biological weapons analyst for the Henry L. Stimson Center think tank.” Smithson said “[t]he Clinton EPA’s decision to post those plans for some 15,000 plants on the Internet in August 2000 ‘wasn’t just bad, it was colossally bad’.” (John Heilprin, AP/Yahoo, Nov. 8) (see Oct. 1). More: Carol D. Leonnig and Spencer S. Hsu, “Fearing Attack, Blue Plains Ceases Toxic Chemical Use”, Washington Post, Nov. 10 (chlorine use at Washington sewage treatment plant); Jonathan Adler, “How the EPA Helps Terrorists”, National Review Online, Sept. 27; “Environmental Danger”, Oct. 11; Angela Logomarsini, “Laws that Make Terror Easy”, New York Post, Oct. 12; “‘Right To Know’ Hearings – Taking Away Terrorist Tools”, Competitive Enterprise Institute press release, Nov. 7.


September 19-20 – Profiling, again. There’s a fairly wide consensus at the moment that airport detectives, border guards and various other kinds of security personnel are sometimes, at least, entitled to apply closer scrutiny to groups of youngish men of Middle Eastern extraction than to groups of elderly women of Scottish descent. Does that mean abandoning our longstanding ideal of equality under the law, or is there some place to draw a principled line? (Joyce Purnick, “Last Week, Profiling Was Wrong”, New York Times, Sept. 15 (reg)).

WORTH READING: Michael Brus, “Proxy War”, Slate, July 9, 1999; James Forman Jr., “Arrested Development: The Conservative Case Against Racial Profiling”, The New Republic, Sept. 10; Randall Kennedy, “Suspect Policy”, The New Republic, Sept. 13, 1999; Yahoo Full Coverage; Heather Mac Donald, “The Myth of Racial Profiling”, City Journal, Spring; George Will, “Racial profiling may be more myth than reality”, Washington Post/Detroit News, April 23; and see (linked already Sept. 14-15) Tarek E. Masoud, “American Muslims Are Americans. Let’s Act Like It”, WSJ OpinionJournal.com, Sept. 14.

September 19-20 – Welcome Insure.com, Atlanta Constitution, Houston Chronicle, Money/CNNfn, About.com readers. Plenty of press mentions lately for this site, its editor or both, including comments on the litigation likely to follow the Trade Center bombing (Vicki Lankarge, “Insurers and airlines face years of litigation over terrorist attacks”, Insure.com, Sept. 13) and in particular the possibility that major airlines could be ruined by liability actions on behalf of victims on the ground (Nancy Fonti and Dave Hirschman, Atlanta Constitution, Sept. 18 — quotes included in earlier but not current online version). Earlier, we were selected as a weekly web pick by the Houston Chronicle: “It’s written in nonlegal terms, so you’ll be able to dive right in and understand what you’re reading.” (Cay Dickson, “What’s Online”, Houston Chronicle, Sept. 10). In another article published before the attack, this one for Money magazine, Amy Feldman quotes us on lawsuits by investors against brokers (“You screwed up? Sue!” (excerpt of longer article), Money/CNNfn, Sept. 10).

We’ve also recently been linked to by several pages at Robert Longley’s U.S. Government section of About.com, including the sections on Gun Control (nominating us as “excellent” and “Best of the Net”) and Environment (“Do some environment laws go just a ‘bit too far?’ Overlawyered.com suggests they might and offers some fascinating reading to back this up.”)

September 19-20 – Washington Post on airline liability. The newspaper is properly skeptical about a generalized bailout of the airlines as such, but sees merit in the idea that they ought not to face near-infinite liability for the terrorists’ actions. “Congress should accept some liability costs, taking care that these are not costs already covered by private insurance. It should also pass legislation to ensure that liability payments are held to a reasonable level and that trial lawyers do not pocket large chunks of the money.” (“The Airline Bailout” (editorial), Washington Post, Sept. 18).

September 19-20 – Michigan tobacco fees. The $450 million award “works out to an hourly rate of $22,500, based on claims by law firms in South Carolina and Mississippi that they spent 20,000 hours on the Michigan portion of the tobacco case,” reports the Detroit Free Press‘s Dawson Bell. Arbitrators conceded that lawyers had done only a “modest” amount of work specifically on behalf of the Wolverine State, but said their efforts on the litigation on a national level deserved kudos, besides which it had been a coup for them to have recruited then-Michigan Attorney General Frank Kelley, considered influential among his fellow AGs. Sure sounds to us like it’s worth $450 million! (“Panel awards big pay in suit”, Sept. 7; Yahoo/Reuters; William McQuillen, “Michigan Tobacco Lawyers Awarded $450 Mln From Accord”, Bloomberg.com, Sept. 7).

September 18 – Settle a dispute today. A story with a moral from Texas Lawyer: “With America under attack by terrorists, lawyers involved in the trial of a bitter, highly personal fee fight agreed the dispute was trivial in the wake of the horror and tragedy of the events of Sept. 11, and they resolved their disagreement.” The $105 million battle over division of fees from tobacco and other litigation had pitted celebrated plaintiffs’ lawyer John O’Quinn against former associate Kendall Montgomery, who was represented by prominent attorneys Joseph Jamail and Ronald Krist; it had riveted the Houston legal community with a series of highly unflattering revelations about both sides. Then came the blasts in New York and Washington, which helped put a lot of other things in perspective. We hardly ever find ourselves writing favorably of Messrs. O’Quinn and Jamail, but here’s hoping their example adds a new item to our national to-do list: 1) make a donation for NYC and Washington relief; 2) book some air travel; and 3) clear the decks of some old dispute that doesn’t seem nearly as important as it used to. (Brenda Sapino Jeffreys, “Crisis Catalyst for Settlement”, Texas Lawyer, Sept. 17 and Houston Chronicle coverage typified by Bill Murphy, “Ex-partner covered for drunken O’Quinn, lawyer says”, Sept. 6; “O’Quinn reneged on agreement, jurors told”, Sept. 7). (DURABLE LINK)

September 18 – More on asbestos in WTC. Less and less seems clear about this subject, notwithstanding the reports we linked yesterday. Here’s Newsweek/MSNBC: “Reports have been conflicting about how much asbestos was installed in the twin towers, which were built between 1966 and 1973, or how much might have remained there at the time of the collapse. … Guy F. Tozzoli, the physicist-engineer who headed overall development of the World Trade Center throughout its construction and remained there until 1987, says asbestos was only used in the first 39 floors of the Tower One, the first building struck Tuesday and the second one to fall. After that, other materials were used at an additional cost of over $400,000, he says. ‘There was no asbestos used anywhere else in the buildings,’ says Tozzoli, who currently is president of the World Trade Center Association.” (David France and Erika Check, “Asbestos Alert”, Newsweek/MSNBC, Sept. 14). The reports linked yesterday from Steven Milloy and JunkScience.com, on the other hand, describe much more of the complex, including the lower 64 floors of Tower 2, as having been given asbestos insulation.

How much of the original insulation was still there as of Sept. 11? Yesterday’s linked articles seemed to proceed from the premise that it remained in place. But here’s Newsweek/MSNBC again: “Subsequently, the asbestos was encapsulated in a honeycomb of plastic, and in the early ’80s, after a ‘fastidious, painstaking process,’ it was entirely removed, he [Tozzoli] says. ‘If they are finding asbestos in the ash, it is not coming from us.’” The Port Authority, the buildings’ owner, engaged in prolonged litigation with asbestos manufacturers and its own insurers seeking to shift to them $600 million in costs of asbestos abatement. (British Asbestos Newsletter, Spring 1996, item #2; Mound, Cotton, Wollan & Greenglass, “What’s New“, “Cases”). Reader Maximo Blake writes to say: “To the best of my knowledge a majority of the asbestos coating the beams and elsewhere was removed in the 1980s. My information comes from a Port Authority employee who supervised the removal.” Just to add a bit more complication, a web search reveals a relatively recent Sept. 12, 2000 entry from the Port Authority’s Construction Advertisements Archive in which the authority solicits sealed bids for ongoing “Removal and Disposal of Vinyl Asbestos Floor Tiles and Other Incidental Asbestos-Containing Building Materials” at the WTC, with bids due October 17, 2000.

Plus: Today’s New York Times quotes specialists with a range of opinions on whether the change in materials might have made a difference. (James Glanz and Andrew C. Revkin, “Did the Ban on Asbestos Lead to Loss of Life?”, New York Times, Sept. 18 (reg)).

September 18 – “Civil liberties in wartime”. Just-started Slate dialogue between Stewart Baker (Steptoe & Johnson) and Eugene Volokh (UCLA School of Law, Center-Right) looks like it will be a good one, as we’d expect from these two (began Sept. 17).

September 17 – Renewed in alabaster. Our friend (and frequent contributor to this site) John Steele Gordon, author of The Business of America, contributed this commentary on the afternoon of the blast to National Public Radio’s Marketplace, still relevant today:

“The beating heart of world capitalism will beat again, and soon.

“The New York financial market — a potent and emotional symbol of American power — has been struck before. In 1863 the draft riots, sparked by opposition to the Civil War, engulfed the city from downtown to its northern edge, then in the east forties. Hundreds, perhaps thousands, died in the three days of looting, fire, and lynching. But as soon as order was restored — by army regiments rushed in from Gettysburg — the banks and the stock exchange reopened. Business went on.

“In 1920, a deliberate attack on Wall Street itself resulted in an explosion in front of the Morgan Bank. Hundreds of pounds of cut up iron chunks, intended as people killers, were hurled throughout the neighborhood, and awnings as high as twelve stories up burst into flame. Thirteen were killed and dozens injured. Had the bomb exploded a few minutes later, when lunch-hour crowds would have thronged the corner of Wall and Broad, the death toll would have been in the hundreds. But the next day, the Morgan bank, and the stock exchange across the street, were open for business, their shattered windows boarded up, their courage intact.

“New York City is a tough place, both when it comes to dishing out misfortune and when it comes to absorbing it. And no part of this city is tougher than its oldest part, where people have come for three hundred and fifty years to seek their fortunes. Too many hearts have been broken there, and too many dreams fulfilled, to be more than momentarily shaken even by an outrage of the magnitude of this attack.

“We New Yorkers will bury our dead — however many they may be — comfort our wounded, plan our revenge. But most of all, New York will go on.

“It will go on doing what New York does best, buying and selling, searching for opportunity, reaching for the stars.

“Two thousand years ago, St. Paul said, ‘I am a citizen of no mean city.’ On this terrible day, millions of New Yorkers know exactly what he meant.” (DURABLE LINK)

September 17 – How many lives would asbestos have saved? Don’t-miss column from FoxNews.com’s Steven Milloy, associated with the Cato Institute and known for his JunkScience.com page: “Until 30 years ago, asbestos was added to flame-retardant sprays used to insulate steel building materials, particularly floor supports. The insulation was intended to delay the steel from melting in the case of fire by up to four hours. In the case of the World Trade Center, emergency plans called for this four-hour window to be used to evacuate the building while helicopters sprayed to put out the fire and evacuated persons from the roof. … In 1971, New York City banned the use of asbestos in spray fireproofing. At that time, asbestos insulating material had only been sprayed up to the 64th floor of the World Trade Center towers.” [see addendum/correction below] Both planes struck higher floors, and the substitute material did not prove notably effective in preserving the steel, whose melting caused the towers to collapse 56 minutes in one case and 100 minutes in the other after fire broke out. Moreover, Milloy argues, by the time of the WTC’s construction, “wet-spraying” techniques of asbestos installation had been developed that made it possible to drastically lessen the danger to construction workers of breathing in harmful fibers during application. The late Herbert Levine, “who invented spray fireproofing with wet asbestos … frequently would say that ‘if a fire breaks out above the 64th floor, that building will fall down.’” (“Asbestos Could Have Saved WTC Lives”, Sept. 14).

Addendum: reader Thomas Sanderson, mechanical and aerospace engineer, writes: “Given that I read your site every day because of the quality and common sense, I was deeply disappointed to find you referring this article without appearing to recognize the problems with its argument.

“Fire insulations for buildings are designed to protect the structure against the heat from a fire fueled by the building’s contents: paper, furniture, carpet, etc. This is true of asbestos insulations and their replacements. When you add several hundred thousand pounds of jet fuel you create a fire that is far hotter than anything the designers planned for. In addition, the crash itself would have stripped most of the insulation from the steel columns, rendering the insulation useless no matter what material was used. The collapse of the towers short of the 4 hour mark specified in the article was due to the size and heat of the fire being well outside the specifications of the insulation and building codes; there is no reason to believe that asbestos insulation would have performed any better than the insulation that was used and every reason to believe that asbestos would have failed in the same way.

“By citing this column without pointing out its obvious flaws, you are encouraging the kind of unjustified lawsuits your site intends to stamp out.”

Further addendum: Milloy’s JunkScience.com (first Sept. 15-16 item) adds the following correction/amplification in response to reader emails: “Apparently, One World Trade Center was completely insulated with asbestos. But Two World Trade Center was insulated with asbestos only up to the 64th floor. One World Trade Center lasted almost 45 minutes longer than Two World Trade Center. It’s possible — no guarantees — that more people might have gotten out of Two World Trade Center had it been fully asbestos-insulated. Nothing would have prevented the buildings from collapsing eventually given the heat generated by the combustion of jet fuel.” (& see Sept. 18: MSNBC quotes an authority who contradicts the above account and says the asbestos was removed in the 1980s)

September 17 – $3 million verdict for selling gun used in suicide. Ryan Eslinger, 19, committed suicide with a gun he bought after lying on the application at Kmart to conceal his history of paranoid schizophrenia; the 17-year-old clerk, an acquaintance of his from high school, mistakenly accepted Eslinger’s passport as adequate identification, which it isn’t under federal gun laws. Now a federal court jury in Utah has told the retailer to pay $1.5 million in compensatory and $1.5 million in punitive damages to Eslinger’s family, saying it acted with “reckless indifference”. (Patty Henetz, “Kmart Pays Punitives to Utah Family Over Shotgun Sold to Suicidal Teen”, AP/Law.com, Sept. 17; “Kmart sued for wrongful death in suicide case”, AP/Nando, Sept. 5).

September 14-16– “Why they hate us”. “It was a novel thing in 1776 to treat people as ends in themselves, not as the instrument of some higher purpose. In many places, it still is. As a rule, Americans don’t subordinate individuals to grand and noble causes — we let them decide whether to subordinate themselves. … Our deference to the pursuit of happiness exasperates critics who see it as frivolous and shallow. They think life is meaningless and even wicked unless it is devoted to some cause greater than yourself.” Best column we’ve read lately on why premodern fanatics of every stripe and on every continent hate our society for its supposed decadence, materialism, and moral laxity. (Steve Chapman, Chicago Tribune/TownHall.com, Sept. 13).

September 14-16 – Security holes: to the North… December 1999′s interception of Ahmad Ressam as he crossed from British Columbia into the U.S. with bomb-making materials, and the apparent use of Nova Scotia and other parts of Canada as staging areas for this week’s outrage, points to a persistent problem: “Canada, according to David Harris, former CSIS chief of strategic planning, is ‘a big jihad aircraft carrier [terrorists use] for launching strikes against the U.S.’” While actual carrying out of terrorist schemes is against Canadian law, the country’s authorities allow surprisingly wide scope for organizing and fundraising in support of such schemes. (“With friends like us” (editorial), National Post, Sept. 13; Mark Steyn, “A very curious nation where Canada once was”, National Post, Sept. 13; Tom Arnold (& files from Reuters), “U.S. to call for tighter security at borders”, National Post, Sept. 13; Elizabeth Nickson, “Evil resides among us, in our hearts”, Sept. 13; Paul J. Smith, “The Terrorists and Crime Bosses Behind the Fake Passport Trade”, Jane’s Intelligence Review, July 1; Mary Anastasia O’Grady, “Threat from the North”, WSJ OpinionJournal.com, Sept. 14).

September 14-16 – …and at home. Often quite unfairly, organized Arab-Americans and Muslim-Americans find their loyalty to this country put in question. As the surest way of dispelling such imputations, “they should help in every way possible to smash the network within their own communities that provides money and shelter to terrorists. It’s the least they can do for their neighbors”. (Nolan Finley, “Arab-Americans can help cause by exposing terrorist sympathizers”, Detroit News, Sept. 13; Tarek E. Masoud, “American Muslims Are Americans. Let’s Act Like It”, WSJ OpinionJournal.com, Sept. 14).

September 14-16– What you knew was coming. Lawyers “say they expect an avalanche of lawsuits against the airlines, the security companies the airlines hired to screen passengers at the airports and the government agencies that run the airports.” (Joseph B. Treaster and David Cay Johnston, “Billions in Claims Expected, but Compensation Could Vary Widely”, New York Times, Sept. 13; Robert Manor and Rick Popely, “U.S. airlines face trouble in aftermath of attack”, Chicago Tribune, Sept. 13). After the earlier bombing of the World Trade Center in 1993, New York’s Port Authority unsuccessfully sued companies that made fertilizer, one of the bomb’s components (Aug. 23, 1999). The Association of Trial Lawyers of America yesterday called for a “moratorium” of unspecified length on the filing of suits over this week’s calamity (ATLA website, “A National Tragedy“). On lawsuits against the U.S. government over terrorism and their tendency to give the terrorists a second victory, see July 5, 1999 (Kenya and Tanzania embassy bombings). On the problematic nature of recently passed laws that permit victims of terrorism to sue responsible foreign states and then recover part of the resulting jury awards from U.S. taxpayers, see June 18, May 9; July 6, 2000.

Today’s Times reports that the two airlines whose planes were hijacked, American and United, are urging Congress to curtail suits against them by victims on the ground (as opposed to their own passengers and crew), a step that might be taken in conjunction with a federally legislated compensation scheme for victims in lieu of litigation; trial lawyers appear to be mobilizing to oppose such measures, even though a federal scheme of legislated compensation would be likely to get cash to survivors earlier and with more certainty than would lawsuits. “Lawyers who specialize in representing plaintiffs said the airlines were the most likely targets for negligence and wrongful death suits for victims on the ground and in the air. Potential payments could run into the hundreds of millions of dollars, the lawyers said.” For those new to this topic, this figure of “hundreds of millions” apparently represents not airlines’ aggregate liability, but of what they could pay in individual cases where high-paid businesspersons perished (such payments by airlines to families having ranged well into the tens of millions of dollars in individual cases in the past). Missing from the article is any plausible estimate of airlines’ aggregate liability should lawyers succeed in getting them held responsible for ground losses (a theory which of course the courts may not accept). Counting wrongful-death, injury, property damage and business interruption claims, it seems unlikely that the totals would stop short of many tens of billions of dollars, a prospect likely at some point to exhaust the airlines’ available insurance coverage and drive them into bankruptcy, with resulting destabilizing effects on the U.S. air transport system and economy (again, assuming courts go along, which they may not). Today’s Times coverage also cites “plaintiff’s lawyers” as having spread word in recent days that insurance companies might be preparing to deny WTC claims by resorting to war exclusions in policy coverage, a report well calculated to alarm and anger policyholders and make them more likely to consider hiring lawyers, but for which the evidence so far appears remarkably scanty; every insurer spokesperson we’ve seen quoted has contradicted the report. (Joseph B. Treaster, “Airlines Seek Restrictions on Lawsuits Over Attacks”, New York Times, Sept. 14).

September 13 – Before going to war, declare war. Formal declarations of war paradoxically help make the world a more civilized place, at least when compared with the alternative, the modern practice of waging war without declaring it: like other legal formalisms, they help put an end to self-serving guessing games among both combatants and third parties as to who owes obligations to whom. “We should seriously consider a congressional declaration of war,” writes columnist Charles Krauthammer. “That convention seems quaint, unused since World War II. But there are two virtues to declaring war: It announces our seriousness both to our people and to the enemy, and it gives us certain rights as belligerents (of blockade, for example).” (“To War, Not to Court”, Washington Post, Sept. 12). There are also various precedents Congress might consult for steps other than the conventional declaration of war against a named enemy state; among them are letters of marque and reprisal, employed in the early history of American navigation. (Washington Post, letter to the editor from Wade Hinkle, Annandale, Va., Sept. 12; scroll to near bottom) (via Instapundit).

September 13 – Self-defense for flight crews. Issuing them guns (employing ammunition of a type unlikely to pierce a metal fuselage) might be better than today’s practice of mandating their defenselessness, and a whole lot more meaningful than (to name one newly announced step) forbidding airport shops to sell plastic dinner knives. A less drastic approach “would be to give all flight crews tasers, pepper spray, and the training to use them. This approach has the added benefit of dealing with ‘air rage,’ which is still far more common than hijacking, but the airlines would probably need some legislative protection from lawsuits to adopt the practice.” (Virginia Postrel, Dynamist.com, Sept. 12; Dave Kopel, “Making the Air Safe for Terror”, National Review Online, Sept. 16).

September 13 – Non-pregnant rescuers, please. “The D.C. Fire Department and Emergency Medical Services is in all kinds of hot water for disqualifying its pregnant female applicants.” Would this be an okay time to agree that society, women included, has a compelling reason to want to hire the strongest, quickest, and hardiest prospects for jobs that may involve pulling victims from the rubble of disasters? (“The law vs. common sense” (editorial), Washington Times, Sept. 10).

September 13 – Message to the killers. “What was it you hoped we would learn? Whatever it was, please know that you failed. Did you want us to respect your cause? You just damned your cause. Did you want to make us fear? You just steeled our resolve. Did you want to tear us apart? You just brought us together.” (Leonard Pitts Jr., “The barbarians will learn what America’s all about”, Miami Herald/Seattle Times, Sept. 12) And: Mark Steyn, “West’s moral failure at root of tragedy”, National Post, Sept. 11; Dave Barry, “Just for being Americans …”, Miami Herald, Sept. 13; Jeff Jacoby, “Our enemies mean what they say”, Boston Globe/Jewish World Review, Sept. 13; eyewitness account with pictures: The Fine Line blog, Sept. 12.

September 12 – “From the dust will come justice”. “[J]ustice may not be swift. It is important, though, that it be sure.

“For those who on Tuesday took a part of America’s heart, there must be one uneasy assurance: Life is long. We are not finished. And it is they who must feel the terror.” (Chicago Tribune (editorial), Sept. 11). We also recommend the coverage on Virginia Postrel’s and Glenn Reynolds’ sites.

September 12 – Barbara Olson, 1955-2001. The attorney, commentator, author, and wife of Solicitor General Ted Olson (and no relation to this site’s editor) was on board American Airlines Flight 77 and used her cell phone to call her husband and relay details about the flight’s hijacking. A former prosecutor, Mrs. Olson rendered many services to this country, and it would be fitting if by this final act she helped assist law enforcement in the inquiries that lead to bringing the murderers to justice (John Solomon, “Barbara Olson, wife of U.S. solicitor general, dies in Pentagon attack”, AP/Boston Globe, Sept. 11).

September 12 – Transsexual passenger’s airline hassle. We were preparing a light, jolly sort of item about the lawsuit charging United Air Lines with discrimination against transsexuals because they over-hassled Richard Ward/Sarah West at boarding time: “according to the lawsuit, Ward was told he wouldn’t be able to fly until he looked more like his passport photo, which shows him as a man.” But we knew there was a serious point at the incident’s core: airline personnel aren’t just being spiteful when they insist that passengers match up fairly closely with their picture IDs. Could we agree that this is a bad moment at which to assert a new civil right to board airliners in disguise? (WJLA, “Airline Orders Man to Change Out of Women’s Clothing”, Sept. 5; AirDisaster.com thread)

September 12 – Self-defense: an American tradition. In his much-praised book ”Arming America: The Origins of a National Gun Culture”, Emory University historian Michael A. Bellesiles delivered a novel thesis many reviewers were eager to hear: that America’s identification of gun ownership with individual liberty is a recent invention, and that “gun ownership was exceptional in the seventeenth, eighteenth, and early nineteenth century, even on the frontier”. Now a front-page Boston Globe article backs up a growing furor over the book’s methods and veracity. (David Mehegan, “New doubts about gun historian”, Boston Globe, Sept. 11; Melissa Seckora, National Review, Oct. 1; Dave Kopel and Clayton Cramer, “Check the Footnotes”, National Review Online, Jan. 13-14).

September 11 – Soaring medical malpractice awards: now they tell us. We couldn’t have said it better than SmarterTimes did yesterday: “Unreformed on Tort Reform: An article on the front page of today’s [i.e. Monday's] New York Times reports that jury awards in medical malpractice cases reached an average of $3.49 million in 1999, up from $1.95 million in 1993. The article reports that in California, ‘juries awarded more than $1 million in 39 malpractice lawsuits, up from 28 seven years earlier. … The average award rose to $2.9 million, from $2 million.’ Well, the Times looks a bit silly, in retrospect, for that largely uncritical report in its national section on August 6, 2001, which ran under the headline, ‘A Study’s Verdict: Jury Awards Are Not Out of Control’ and concluded with a quote from a law professor who asserted, ‘The evidence is that juries are not out of control.’ That August article didn’t mention any of these statistics about the increase in jury awards in malpractice cases. Today’s article, meanwhile, is flawed because it doesn’t say how many of these large jury awards are reduced by judges on appeal.” [on which, see our Sept. 7-9 entry: the National Law Journal finds that judges appearing to be leaving intact a larger share of big awards]. (Joseph B. Treaster, “Malpractice Rates Are Rising Sharply; Health Costs Follow,” New York Times, Sept. 10 (reg); Yahoo version (no reg, but shorter shelf life). Earlier Times report: William Glaberson (who else?), New York Times, Aug. 6 (fee-based archive), Googlecached at Seattle Post-Intelligencer site).

Here’s more, from the trade journal Business Insurance, on the looming crisis in med-mal insurance: “In response to losses on medical malpractice liability business, The St. Paul Cos. Inc. has raised rates and is walking away from some health care risks. … The St. Paul, Minn.- based insurer said it has raised its medical malpractice liability rates for large hospitals an average of 76% on policies that have renewed this year and has not renewed some policies. Rate increases have become steeper in recent months, with the average renewal in July up 103% from last year’s rate. … because of the serious losses recorded by large hospitals, St. Paul plans to exit some geographic regions and not renew policies with certain hospitals, [company official Michael] Miller said.” (“Updates: Med Mal Rate Hikes”, Business Insurance, Aug. 27, fee-based archive). And a report from July 2 on the crisis facing nursing homes: “In Florida, for example, nursing homes, would merely be swapping dollars for liability coverage, according to Mr. Henderson [Jim W. Henderson, vp-marketing division of insurance brokers Brown & Brown in Daytona Beach, Fla.]. ‘You can probably purchase insurance,’ he said, ‘but it would be almost dollar-for-dollar based upon exposure and premium. You’ll spend $3 million for $3 million worth of coverage.’ Buyers in Florida, Texas and Pennsylvania that can get nursing home liability coverage at increases of less than 200% to 300% will be lucky, Mr. Henderson said.” (Michael Bradford and Lee Fletcher Rosenberg, “Brokers the bearers of bad pricing news”, Business Insurance, July 2, fee-based archive).

September 11 – The view from Arsenictown. In the controversy over arsenic levels in drinking water, Chicago Tribune columnist Steve Chapman does something remarkable: he actually checks out what residents think in one of the towns (San Ysidro, N.M.) meant to benefit from the tighter rules (Sept. 6; TownHall.com version) (& see Aug. 17-19, April 18).

September 11 – P.D. James on compensation culture. Columnist George Will, in London, interviews mystery writer P.D. James: “She is mildly disdainful of what she calls ‘the climate of compensation,’ which Americans call the entitlement mentality of a therapeutic culture. ‘People,’ she says bemusedly, ‘expect to be counseled if they suffer trauma.’ Recalling the soldiers returning from two wars, she says tartly, ‘I don’t remember them all coming home expecting to be counseled about what they went through.’” (“The edge of a moral sleuth”, Washington Post, Sept. 9).


September 8-10 – Netscape “Cool Sitings” of the day. Overlawyered.com was one of the picks on Thursday’s edition of Netscape’s much-surfed “Cool Sitings” feature. Their write-up: “Legal Shenanigans. If the joke: ‘What do you call 1000 lawyers at the bottom of the sea? A good start’ rings true for you, check out this site” (Sept. 7). And we’re also today’s (Friday’s) web pick of the day at the Memphis Commercial Appeal‘s “C.A. Eye“.

September 8-10 – …Than never to have been born at all. By a 4-3 margin, the Ohio Supreme Court has declined to let a 7-year-old with spina bifida sue her parents’ doctors on a claim of “wrongful life”. The little girl’s argument — at least, the argument put forth on her behalf in court — is that had the doctors told her parents about the availability of a prenatal test that would have disclosed her abnormality, they would have had an abortion, and that she suffered injury because they failed to do so. “Chief Justice Thomas J. Moyer, writing for the majority, said courts do not have the authority to decide if a person should or should not have been born.” Justices Paul Pfeifer, Andrew Douglas and Alice Robie Resnick dissented. (Spencer Hunt, “Girl has no right to sue”, Cincinnati Enquirer, Sept. 7; “Ohio Court Rules Against Parents”, AP/FindLaw, Sept. 7; decision, Hester v. Dwivedi) (see also May 9).

September 8-10 — “NZ kids get ‘license’ to play with toy guns”. “Children as young as four in New Zealand are being required to apply for ‘licenses’ for toy guns.” They must explain why they want one, and playing cops and robbers is not a good enough reason. (Sydney Morning Herald, Sept. 6). Also: an Australian radio talk show host, convicted of improperly soliciting information about the deliberations of a jury, was “given a 15-month suspended sentence … because the judge believed he was too wealthy to fine and too famous to jail.” (Stephen Gibbs, “Laws too famous to jail, says judge”, Sydney Morning Herald, Sept. 6).

September 8-10 – “A perverse use of antitrust law”. “The Justice Department could hardly have come up with a more harmful set of demands than those it now makes [on Microsoft],” writes Charles Munger, vice chairman of famed investor Warren Buffett’s Berkshire Hathaway. “If it wins, our country will end up hobbling its best-performing high-tech businesses. And this will be done in an attempt to get public benefits that no one can rationally predict.” (Charles Munger, Washington Post, Sept. 1). More: “Did Microsoft Harm Consumers? Two Opposing Views”, by David S. Evans, Franklin M. Fisher, Daniel L. Rubinfield, and Richard L. Schmalensee, AEI-Brookings Joint Center for Regulatory Studies (abstract, full text (PDF format), order form); David Boaz, “The theft of Microsoft”, Cato Daily, July 27; Jonathan Rauch, “The Microsoft Case: Fair, Necessary, and Totally Random”, National Journal, June 10.

September 8-10 – “State errors unfairly cast some dads as deadbeats”. A federal law has mandated toughening of state child support collection systems. Unfortunately, reports Marilyn Gardner of the Christian Science Monitor, the resulting overhauls have increased the rate of billing errors in some of the systems and led to parents mistakenly being labeled deadbeats (August 9).

September 8-10 – $1.5 million estate bill included 900 hours spent on fees. An Indiana appeals court has rebuked a law firm which billed heirs $1.5 million for handling an inheritance case, including 900 hours it says it spent calculating its fees. The Indianapolis law firm of Henderson, Daily, Withrow & DeVoe had worked on the estate of former Conseco Inc. executive Lawrence W. Inlow, who died without a will at age 46 in a helicopter accident leaving an estate of $185 million. “Requiring a client to pay an additional amount for being told what he owes in the first instance is neither good business nor good law,” wrote Judge Sanford M. Brook for the appeals court. (“Court Rejects Attorneys’ Charge”, AP/FindLaw, Sept. 7) (court opinion, Inlow children v. Estate of Inlow).

September 6-7 – Prosecution fears slow crash probes. Aviation accidents almost never used to result in the filing of criminal charges, but in recent years they’ve been the subject of several highly publicized prosecutions. A House Transportation Committee hearing in late July looked into evidence that fear of incarceration or fines is now discouraging witnesses from cooperating with crash investigators. “For decades, we had relied on individuals to tell us what happened in an accident — and they usually, sometimes reluctantly, do so,” said Daniel Campbell, managing director of the official National Transportation Safety Board. But “what has been reluctance to cooperate may become refusal to cooperate.” Campbell said prosecution fears had also made it hard to investigate a recent nonaviation accident, a fatal pipeline explosion in Bellingham, Wash., last year. As a result, “more than a year later, we still have not been able to talk to most of the key individuals who were operating the pipeline when it ruptured and may not be able to in the foreseeable future.” A federal grand jury subpoena also “resulted in a significant delay in the investigation,” Campbell said. “In our view, too much lawyering went on before we were able to test the physical evidence of that tragedy.”

“The recent trend towards the criminalization of aircraft accidents is extremely alarming in that it has the potential to cripple industry’s ability to learn from incidents and accidents, essentially guaranteeing that we will repeat them,” said Capt. Paul McCarthy of the Air Line Pilots Association. He cited the 1996 ValuJet crash in Florida, the USAir 1989 crash at LaGuardia, and the recent Alaska Air crash off the California coast as examples of cases where safety investigations had been slowed. (House Transportation Committee, Aviation Subcommittee, hearing summary, Campbell, McCarthy statements; thread on Professional Pilots bulletin board)

September 6-7 – Update: second chance for Wal-Mart. The giant retailer has won a rematch in the case of former employee Ricky Bourdouvales, who sued alleging discrimination based on transsexualism (male-to-female). Judge Douglas Hague issued a default judgment of $2.1 million when Wal-Mart failed to show up in his New Jersey court (see July 21), but has now agreed to grant a retrial. (“Judge Tosses Trans Bias Award”, PlanetOut, Aug. 28).

September 6-7 – Australian roundup. A now-retired New South Wales judge has come under criticism from the losing plaintiffs in a large case, who complain in their appeal that more than 200 pages of his 247-page opinion consist of material cut and pasted from the submissions made by the two sides. The judge had called the case, over the Copper-7 contraceptive IUD, the longest and most complex product liability case in Australian history. (“Judge ‘cut and paste’ in making his decision on IUDs”, AAP/The Age (Melbourne), Aug. 29). Five partners of a Sydney law firm that handles a large volume of immigration work are suing Immigration Minister Philip Ruddock for defamation, “claiming he implied they were unethical and overcharged clients.” (“Ruddock sued for defamation by lawyers”, AAP/The Age (Melbourne), Aug. 29). And a 1998 finding by a federal justice that a prominent Brisbane law firm engaged in abuse of legal process ignited a debate about the condition of the law in Australia; a national TV show explored widespread discontent over the gamelike aspects of adversary process, interviewing both leading insiders of bench and bar and two outspoken critics, former defense lawyer and prosecutor Brett Dawson and journalist Evan Whitton (“The justice system goes on trial”, Ross Coulthart, reporter, Sunday/NineMSN, Transcript #252, undated). One passage among many that caught our eye:

REPORTER: Do you think there’s a case to argue that some of the ethical rules that lawyers have actually almost encourage dishonesty among lawyers?

JUSTICE [GEOFFREY] DAVIES: Yes I do. One of the examples is that a lawyer can ethically deny an allegation in the opponent’s pleading knowing it to be true.

REPORTER: You’re kidding – so you can basically lie?

JUSTICE DAVIES: Well, what lawyers would say is that you are putting the other side to proof.

REPORTER: It’s a lie though isn’t it?

JUSTICE DAVIES: It is.

September 6-7 – Bill for pizza delivery: $1.25 million? A Cocoa Beach, Fla. jury voted, but a federal judge almost immediately threw out, an award of one and a quarter million dollars to a black family that ordered home delivery from Pizza Hut and found a racial slur included as part of the computer-generated receipt. Judge Patricia Fawsett ruled that responsibility lay with the unauthorized actions of a rogue employee and could not fairly be charged to the company. (“Judge throws out $1.25M verdict against Pizza Hut”, Orlando Sentinel, Sept. 1).

September 5 – EEOC: offbeat beliefs may be protected against workplace bias. “Belief in radically unconventional scientific notions, such as ‘cold fusion’ or cryptic messages from extraterrestrials, may merit the same workplace protections as freedom of religion, according to a ruling by the Equal Employment Opportunity Commission in a job-discrimination case.” The case arose from the April 1999 firing by the U.S. Patent and Trademark Office of patent examiner and astronomer Paul A. LaViolette, who claims the action was taken because he holds unconventional beliefs, including a belief in the highly controversial theory of energy generation through “cold fusion”. In the words of the Washington Post, LaViolette’s website, www.etheric.com, “details his ‘proof’ of the existence of alien radio communication, his theory that the zodiac is a ‘time capsule message’ warning of emanations from the galactic center and his views on the Sphinx, the Tarot and Atlantis, along with his considerable accomplishments in mainstream science.” (Curt Suplee, “EEOC Backs ‘Cold Fusion’ Devotee”, Washington Post, Aug. 23).

September 5 – Tax software verdict: pick a number. A Hinds County, Mississippi jury “awarded the state of Mississippi $474.5 million in its suit against a company that failed to deliver on a new tax processing system that was supposed to modernize the state’s collection efforts.” The verdict against Fairfax, Va.-based American Management Systems Inc. included $299.5 million in actual damages and $175 million in punitive damages. A few days later, the company settled the suit by agreeing to pay the state $185 million. The company has contracts with seven other states to operate similar computerized tax systems; no other lawsuits are pending. (“Company loses tax software suit”, AP/USA Today, Aug. 24; “Settlement cuts tax software verdict”, Aug. 29).

September 5 – Juries and cost-benefit analysis. W. Kip Viscusi, professor at Harvard Law, says businesses today get conflicting signals on the use of cost-benefit analysis in safety matters: a large academic literature encourages them to engage in such analysis as part of their responsibility to the public, but juries get furious when they think that sort of “cold-blooded calculation” has gone on. Moreover, there’s evidence to support the paradoxical finding that the higher a valuation of life and limb a company employs in such an analysis, the more stringently it will be punished by subsequent juries. (“The Trouble With Lawsuits”, TechCentralStation, May 29; Manhattan Institute, luncheon transcript).

September 4 – Emulex fraud: gotta find a defendant. “With the manhunt for the perpetrator of the Emulex fraud [false news report torpedoed company's stock] apparently over, investors burned by the company’s $2 billion post-fraud swing are now hunting for someone, anyone, to sue for legal damages. Two lawsuits have already been filed, one against Internet Wire, which originally distributed the bogus press release, and one against both Internet Wire and Bloomberg, the financial news service that sent out a story based on the press release.” (Craig Bicknell, “Emulex Victims: Who Can We Sue?”, Wired News, Sept. 1).

September 4 – Record-breaking securities class action fee: $262 million. A federal judge in New Jersey last month approved a fee of $262 million for plaintiffs’ lawyers in the securities fraud case stemming from the collapse in the stock price of Cendant Corporation (see June 20). Judge William Walls upheld the record-breaking fee against objections from New York City, a member of the investor class, reasoning that the two lead law firms, New York’s Bernstein Litowitz Berger & Grossman and Philadelphia’s Barrack, Rodos & Bacine, had taken part in a fairly run auction to determine who would get to represent the investors. (Daniel Wise, “Cendant Lawyers Get Record $262 Million in Securities Fraud Case”, New York Law Journal, Aug. 22).

September 4– “Just put the candy in the bag, lady.” “I’ve been watching the lawsuits over Columbine with interest bordering on disgust. It seems the argument is that someone (preferably a government agent not affiliated with the Postal Service, or failing that, any random person with deep pockets) should have foreseen the future and intervened,” writes Paul Kelly, a former vice chair of the Boulder, Colo. Democratic Party. “…If this new ‘everybody’s negligent all the time’ social philosophy seems silly to you, it’s probably because you’re not a lawyer. To a lawyer this is like Halloween to a 10-year-old. ‘Just put the candy in the bag, lady. And hurry. There are still five families on this block I haven’t sued yet.’” (“Doing nothing may be best option”, Denver Post, Aug. 13).

September 1-3 – Texas tobacco fees: Cornyn’s battle. In December 1998 an arbitration panel awarded a stupendous $3.3 billion in legal fees to five law firms selected by former Texas Attorney General Dan Morales to represent the state in the tobacco-Medicaid litigation, which had ended in a $17 billion settlement. The Big Five firms, all high rollers in Lone Star State personal-injury litigation and all major Democratic Party donors, include Beaumont, Texas’s Provost & Umphrey (Walter Umphrey), Houston’s Williams & Bailey (John Eddie Williams), Harold Nix’s law firm in Daingerfield; Beaumont’s Reaud, Morgan & Quinn (Wayne Reaud); and John O’Quinn’s firm in Houston.

Mr. Morales’s Republican successor as Texas Attorney General, former Texas Supreme Court Justice John Cornyn, ran for office in part on a pledge to investigate the circumstances surrounding the fees, and his probe soon led to some eye-opening revelations (see May 22). A Houston lawyer named Marc Murr, who’d earlier worked at the same law firm with Morales, had stepped forward after the settlement to claim a $520 million (later $260 million) share of the proceeds, a mystifying claim since participants could not remember Murr doing work on the case or being considered part of the state’s team. Murr pointed to a hitherto unsuspected contract with Morales entitling him to a piece of the action, but Cornyn hired forensic experts who concluded that the contract had been doctored and backdated. Rather than be put under oath about the matter, Murr withdrew his claim to the fees; a U.S. attorney’s office has the matter under investigation.

As for the circumstances by which the Big Five came by their fees, Cornyn’s investigation has met with a stone wall of resistance and non-cooperation from Umphrey, Williams, Nix, Reaud and O’Quinn. In particular, he would like to investigate what the Houston Chronicle describes as “longtime allegations that [Morales] solicited large sums of money from lawyers he considered hiring” for the suit. Two years ago famed Houston attorney Joe Jamail, who wasn’t among those picked to represent the state, “said Morales solicited $1 million from each of several lawyers he considered hiring”, in addition to the $2 million that each of the five agreed to front to finance the case. “The money, according to memos prepared by Jamail, purportedly was for a fund to help Morales defend himself against political or public relations attacks from cigarette companies during the litigation.” Last year in sworn testimony Dawn Nelson, ex-wife of Big Five lawyer John Eddie Williams, said “Williams had told her that Morales wanted $1 million from one or more of the lawyers that were hired for the tobacco case,” the Chronicle reported.

In an interview last November cited in the same Chronicle reportage, Morales said that the purpose of the money might have been misunderstood and that he didn’t intend it to be used for his personal or political benefit. In May, the Five filed statements in court saying they had not paid any consideration for the chance to participate in the litigation. But they’ve consistently refused to go under oath to answer Cornyn’s questions, and skillful legal maneuvering on their behalf has kept at bay that alarming prospect — first by their successful removal of his legal action away from state court and into the hands of the same federal judge in Texarkana whom they initially selected to hear the Medicaid-recoupment case (see “Best little forum-shopping in Texas”, Aug. 27, 1999), and now with their obtaining of a ruling by that judge last month that Cornyn has no independent right to question the lawyers except under such terms as he, the judge, may see fit to approve in future (Cornyn plans an appeal of that ruling to the Fifth Circuit). The Five have also sought a gag order to prevent the press or anyone else from getting a look at documents generated by the investigation, notwithstanding the usual publicly proclaimed stand of organized trial lawyers that “protective orders” of that sort are an affront to the public’s right to know and serve only to shroud wrongdoing in secrecy. And, like other lawyers who have represented the states in the tobacco recoupment litigation, they have argued that the fees are not an appropriate subject for review by representatives of the taxpayers because they are formally structured so as to be paid directly by the cigarette companies, rather than be routed through the state as part of its payment as is customary.

The Big Five also claimed $40 million in reimbursement for out-of-pocket expenses (as distinct from legal fees) but at the end of May they returned $6.9 million of this money, saying the earlier sum had been overstated. “Their misrepresentation of expenses just raises more questions and strongly reinforces the need to determine what happened in the tobacco case,” Cornyn said. “After 18 months of assuring the people of Texas that their expenses were justified in every way … [they] are now returning millions of dollars with no satisfactory explanation as to why.” Michael Tigar, attorney for the Five, said the earlier sum had been a good-faith estimate and that deviations from such estimates are common. (DURABLE LINK)

SOURCES: Kelley Shannon, “Cornyn, rebuffed in federal court, vows to appeal”, AP state and local wire, Aug. 16, not online, available on NEXIS; “Five attorneys say Morales not paid for contract in anti-tobacco lawsuit”, AP state and local wire, May 12, not online, available on NEXIS; Brenda Sapino Jeffreys, “As Tobacco Lawyers Return Money, Questions Return”, Texas Lawyer, June 9; “Tobacco trial lawyers admit misrepresentation”, Cornyn press release, June 1; Susan Borreson, “Tobacco Plaintiffs’ Lawyers Won’t Enforce Contract With State”, Texas Lawyer, December 2, 1999; Robert Bryce, “Nicotine Fit”, Texas Observer, November 26, 1999; Janet Elliott, “‘Tobacco Five’ Want Confidentiality Order”, Texas Lawyer, Sept. 9, 1999.; Clay Robison, “Cornyn moves in on anti-tobacco lawyers”, Houston Chronicle, April 27. Murr case: Miriam Rozen, “Smoke-filled room”, Dallas Observer, Sept. 17, 1998; “Pay up?”, April 22, 1999; Patrick Williams, “Buzz”, Dec. 17, 1998, May 20, 1999; Jim Brickman, “What Would I Ask Former Attorney General Dan Morales In the Grand Jury Investigation?“, Citizens for Lawsuit Abuse Houston; John R. Butler, Jr., “Dan Morales and Marc Murr Have Some Explaining To Do To All Texans“, CALA Houston.

September 1-3 – “Olympic trials”. At least ten athletes, after falling short in efforts to make the U.S. Olympic team in their sports, have insisted on going to arbitration or in one case to federal court, according to columnist Kimberly Strassel of the Wall Street Journal‘s online Opinion Journal (Aug. 31; see also Mark R. Madler, “Judges Wrestle With Epic Case of Olympic Athlete” (wrestlers), American Lawyer Media, Aug. 31.

September 1-3 – “Don’t talk to the humans”. Some years back the federal government issued regulations on universities’ use of human experimental subjects. How strictly are these rules being enforced? So strictly that a scholar can get in big trouble by not asking an official committee’s permission before visiting a retirement home and chatting with one of the elderly residents about his life. (Christopher Shea, Lingua Franca, Sept.) (via Arts & Letters Daily).


April 20 – Not tonight, gotta coach my kids. “Children as young as 7 and 9 were coached to fake injuries in a car insurance fraud case in western Arkansas, a lawyer for the state Insurance Department said.” Eleven people in the Fort Smith area were charged with setting up liability claims by staging accidents so as to make it appear that other drivers were at fault. “Clay Simpson, an attorney for the department, said some used children as passengers and trained them to act injured after the staged crashes”. One of the adults evidently decided to add realism, according to Simpson, and “physically struck one of the small children in the head so he would have an injury … and be able to go to the hospital.” (Arkansas Insurance Department press release, April 13; Chuck Bartels, “Eleven Charged for Staging Crashes”, AP/Excite, Apr. 13; “The youngest grifters”, AP/ABC News, Apr. 14).

April 20 – Web-advertisers’ apocalypse? Most noteworthy tidbit in WSJ news story a while back on wave of privacy suits against cookie-deploying Web ad firms, quoting Fordham Law’s Joel Reidenberg, a specialist on the topic: “Even advertisers could have some liability to the extent they benefited from and participated in the DoubleClick network. ‘Anybody in the chain of information who participated in the passing off of information to others would be potential targets,’ Mr. Reidenberg says.” (Richard B. Schmitt, “Online Privacy: Alleged Abuses Shape New Law”, Wall Street Journal, Feb. 29, 2000, fee-based archive).

April 20 – Arm yourself for managed care debate. How much higher will medical costs go when Congress makes it easier to sue, and how many more families will get priced out of health insurance? How coherently will a cost control system work once it’s geared to whichever jury gets angriest? Resources: Krishna Kundu, “The Norwood-Dingell Liability Bill: Health Insurance at Risk”, Employment Policy Foundation cost study, Mar. 24; “The Problems with Punitive Damages in Lawsuits against Managed-Care Organizations”, New England Journal of Medicine, Jan. 27; Health Benefits Coalition.

April 20 – Letourneau scandal: now where’s my million? “The teen-ager who fathered two children by his former grade school teacher, Mary Kay Letourneau, is seeking damages from a suburban [Seattle] municipality and school district. Vili Fualaau, now 16, and his mother, Soona, are seeking damages of at least $1 million for emotional suffering, lost income and the cost of rearing the girls, who are in the care of the boy’s mother.” The suit charges school officials with failing to protect the boy from the amorous advances of his teacher, 38, who’s now serving a 7 1/2 year sentence for her involvement with him. “The teen, his mother and Letourneau previously have said in television appearances and in a book that the relationship was consensual.” (“Teen-age boy seeks damages in Washington state teacher sex case”, AP/CNN, Apr. 14).

April 19 – All dressed up. James and Cynthia Harnage of Norwich, Ct. are seeking $21 million in damages from Publisher’s Clearing House, the magazine sweepstakes company, which they say in or around last December sent them repeated notices marked “Document of Title” and “official correspondence from the Publisher’s Clearing House board of judges” with messages such as “Congratulations! Your recent entry was a winner! And Approved for $21 Million!” The Harnages say they came to be convinced that they would receive the grand prize in person on Super Bowl Sunday and even got all dressed up to wait for the knock on the door, but it never came. According to a local paper, Mr. Harnage describes himself as devastated by the letdown; the lawsuit alleges fraud and breach of contract and says the couple suffered emotional distress. (“Disappointed couple sues Publisher’s Clearing House”, AP/Newsday, Apr. 14; “Couple sues Publisher’s Clearing House”, New London (Ct.) Day, Apr. 16).

April 19 – From the incivility frontier. Richard F. Ziegler, writing in the Feb. 7 National Law Journal: “Until recently, the classic example of incivility in litigation was famed Texas lawyer Joe Jamail’s defense of a deposition witness in the 1993 Paramount-QVC Network-Viacom takeover battle. According to the excerpts of the deposition transcript included in an addendum to an opinion by the Delaware Supreme Court, Jamail told the examining lawyer that he could ‘gag a maggot off a meat wagon’ and made other vituperative remarks that the Delaware court labeled ‘extraordinarily rude, uncivil and vulgar.’ . … Mr. Jamail’s ‘maggot’ rhetoric has now been displaced by a new classic in incivility: a pre-suit letter sent by a New York litigator that threatened the prospective defendant with the ‘legal equivalent of a proctology exam’ if the plaintiff’s claim weren’t satisfied without litigation. That wording, plus some other aggressive tactics by the same lawyer, ended up costing the would-be proctologist a $50,000 sanction (now on appeal).” The sanctions were handed down last November by federal judge Denny Chin against litigator Judd Burstein, in a case called Revson v. Cinque & Cinque P.C. However, prospective targets of legal intimidation should not get their hopes up too high: a few years ago the Second Circuit, which includes New York, “sustained as proper a pre-suit letter that sought to encourage settlement by threatening the opposing party with harmful publicity.” (Richard F. Ziegler, “Litigation: The Price of Incivility”, National Law Journal, Feb. 7).

April 19 – Microsoft case: commentators. A gamut of views, ranging from the moderately appalled to the fully appalled:

* Robert Samuelson on the clash between the living thing that is the New Economy and the seemingly robotic lurch of antitrust enforcement (“Puzzles of the New Economy”, Newsweek, April 17);

* Tom Watson, though declaring himself “no cyberlibertarian,” laments that the suit “has permanently created a Federal presence in the development of networked software in the United States. And that means, of course, lots of lawyers getting lots of hourly fees to litigate in an area they clearly don’t understand.” (“Justice Department Saves the Internet, Film at 11″, AtNewYork, April 6 — via Q Queso);

* Michael Kinsley has fun with a New York Times reporter on the question of whether it was shocking for Bill Gates to try to fend off Justice Department assault by — eeeuw! — hiring lobbyists (“The Timesman With a Microchip on His Shoulder”, Slate, April 17).

April 19 – $60,000 battle over $5 t-shirt. In Westerly, Rhode Island, court wrangling has now gone on for two years over whether then-sophomore Robert Parker’s heavy-metal t-shirt (“White Zombie”, number 666 on back) was unnecessarily disruptive and thus in violation of the school dress code. (Michael Mello, “RI ‘Satanic’ T-Shirt Case Continues”, AP/Washington Post, Apr. 10). Update Aug. 29-30: case has settled.

April 18 – Brockovich story, cont’d: the judges’ cruise. Picking up where we left off yesterday with more highlights from Kathleen Sharp’s investigation for Salon:

* Not long after the case settled with its lucrative $133 million lawyers’ fee, the two L.A. lawyers who’d teamed with the Masry/Brockovich firm to handle the PG&E case, Thomas Girardi of Girardi & Keese in Los Angeles, and Walter Lack of Engstrom, Lipscomb & Lack in Century City, “organized a weeklong Mediterranean cruise for 90 people, including 11 public and private judges. The three PG&E arbitrators were among those invited,” reports Sharp. “One judge called it ‘absolutely incredible.’ A luxury yacht floated on azure waters; tuxedoed butlers balanced silver trays of free champagne; young bikini-clad ladies frolicked on the sun-splashed deck, according to retired Judge [William] Schoettler, who was a guest. As another bare-chested judge remarked at the time: ‘This gives decadence a bad name.’”

“The cruise was organized under the banner of Girardi and Lack’s Foundation for the Enrichment of the Law. Girardi told the Los Angeles Times that the cruise included ‘an extensive professional program,’” which would make it allowable under judicial rules, but retired judge Schoettler can’t recall anyone he knew actually attending a lecture. “The cost was about $3,000 per person, about half the normal rate; Girardi told the Times he and Lack had received a discount for chartering the entire Cunard cruise ship. After some confusion, all of the judges on the trip paid their way, save two unrelated to the PG&E case who were invited to lecture.”

* Some of the judges in the arbitration had an unusually friendly relationship with Girardi: one had officiated at his second wedding, Schoettler had flown in his Gulfstream to attend the World Series, and so forth. “‘I became aware that I should absolutely stay away from [arbitration firm] JAMS or its retired judges when it came to any dealing with Tom Girardi,’ said Laurence Janssen, a partner in the Los Angeles office of Washington law firm Steptoe & Johnson. … ‘The common lore imparted to me was that it would be crazy to get in front of any JAMS arbitration with Girardi.’” The outcry over the post-Hinkley-case cruise helped spur a California Supreme Court inquiry into the arbitration system. (Kathleen Sharp, “Erin Brockovich: The Real Story”, Salon, April 14).

Incredibly — given all the above — some in the White House and in the Al Gore campaign are hoping to ride the success of the celluloid “Erin Brockovich” into a chance to seize the initiative on behalf of the wonders of the beneficent tort system and the wickedness of the mean old tort reformers who’d like it to be regulated and supervised more closely. That came across in both a relatively light column by the New York Times‘s Maureen Dowd (“The Erin Factor”, April 5) and a thuddingly heavy one by Salon‘s Joe Conason, whose writings often sum up the theme-of-the-week of the Clinton/Gore attack machine (“Lessons from ‘Erin Brockovich’”, March 28). Given the revelations in Kathleen Sharp’s article — which, if there’s any justice, should be in contention for the next round of journalistic prizes — it now may be time for Gore’s backers to hope that public opinion doesn’t start focusing on the Hinkley case. Also recommended: Dennis Byrne, writing in the Chicago Sun-Times that “as I sat through the movie with a reporter’s skepticism, I was uneasy about how one-sided it was,” and offering a list of “movies you’ll never see come out of Hollywood”, (“A feel-good story with a bad taste”, April 12, link now dead); and Michelle Malkin, “The truth about Erin Brockovich”, syndicated/ Jewish World Review, April 17.

April 18 – Catfight! This store’s not big enough for two tigers. Federal appeals court reinstates Kellogg Co.’s suit against Exxon over the two companies’ use of cartoon tigers, both of which date back to the 1950s. For years Exxon’s “tiger in your tank” was mostly seen at the gas pump, but more recently the petroleum company has moved him indoors to tout food items at its convenience stores, angering the Battle Creek-based cereal company, which uses Tony the Tiger to sell its Sugar Frosted Flakes. (“Kellogg Renews Suit Against Exxon over Tiger”, AP/Washington Post, Apr. 12).

April 18 – Update: trial lawyers’ war on Allstate. Plaintiff’s attorneys score some advances in campaign against big insurer known for lawyer-averse claims practices (see “How To Hammer Allstate”, Dec. 22). A New Haven, Ct. federal judge has refused to dismiss a lawsuit claiming that that company committed fraud by discouraging third parties involved in accidents with its insureds from retaining lawyers. A Seattle judge agreed with trial lawyer arguments that for Allstate to urge such third-party claimants not to hire lawyers amounts to the unauthorized practice of law and is thus illegal. And a Nassau County, N.Y. judge has levied sanctions against the company for insisting on its policyholder’s day in court against a claim where it should in the judge’s view have conceded liability. (Mark Ballard, “Allstate Tactics Under Fire,” National Law Journal, Jan. 31; Thomas Scheffey, “Allstate Suit Gets Nod From Connecticut Court”, Connecticut Law Tribune, Feb. 14; Michael A. Riccardi, “Appeal Battle Over Allstate Sanction Case May Help Tort Plaintiffs”, New York Law Journal, Mar. 22). Update Apr. 25, 2004: insurer prevails in Connecticut federal case.

April 17 – Brockovich story breaks wide open. Salon scoops competition with journalist Kathleen Sharp’s impressive investigation of the real lawsuit that inspired “Erin Brockovich”. In the Hollywood tale, after our spunky heroine vanquishes nasty Pacific Gas & Electric, the residents of Hinkley, Calif. win big. In the real world, many of the Hinkley clients feel they got the royal shaft from the lawyers who represented them, and are now proceeding to sue those lawyers, specifically Brockovich’s firm of Masry & Vititoe, headed by Ed Masry:

* Of the $333 million settlement paid by PG&E, the lawyers kept a handsome 40 percent ($133 million) share, plus another $10 mil to cover expenses, yet were short (the clients say) on detail to back up the latter largish number. Worse, they say Masry, Brockovich & Co. held on to their money for six months after the settlement, a delay that appears highly irregular to the experts Salon checks with, while not paying interest or even returning their phone calls (the lawyers claim the payments did include interest). Some with large awards also got steered toward certain financial planners, among whom was Ed Masry’s son Louis.

* When the payouts eventually came, many clients found the division of spoils mysterious, arbitrary-seeming or worse. Divided among the 650 plaintiffs, the announced $196 million would provide about $300,000 per client. However, an outside lawyer who interviewed 81 of the plaintiffs says he was told they received an average of $152,000, and Salon reports that many long-term residents with presumably documented medical ailments got payments of $50,000 or $60,000. The numbers are in fact secret, which means clients can’t get an accounting of who received what — you’ve gotta protect the privacy of the other plaintiffs, right? Moreover, “there was no mention of the criteria, formula or method by which the money would be divided,” other than a statement that the amounts would be based on clients’ medical records. Yet some residents say their medical records were never solicited. One elderly, ailing resident “blew up at one of the attorneys, who didn’t like his attitude,” according to a fellow townsman, and “got a real bad deal,” allotted in the end only $25,000: “fairly or not, some residents say they saw a pattern in the distribution method. ‘If you were buddies with Ed and Erin, you got a lot of money,’ said [client Carol] Smith. ‘Otherwise, forget it.’”

* Even while the case was pending, many clients (as well as the outside press) found themselves unable to keep tabs on its progress; it was resolved in arbitration, which takes place off the public record. “We had no idea what was going on and weren’t allowed to watch,” said one plaintiff. Yet with help from the plaintiffs’ lawyers, Universal Studios managed to obtain a copy of the trial transcript — more than many of the actual plaintiffs in the case have yet managed to do. When journalist Sharp attempted to interview the lawyers on the Brockovich team, the resulting conversations were “short and explosive and terminated abruptly by the lawyers.” And when an outside lawyer took an interest in the disgruntled clients’ case, Masry and fellow lawyers at once seized the offensive, suing him for allegedly slandering them and interfering with their business relationship with the clients; this slander suit was filed, then dropped two weeks later, then reinstated, then dropped again.

* What about the science? (see April 14 and March 30 commentaries) Fumes from the application of chromium-6 in industrial settings are indeed dangerous to workers who inhale them, but the crux of the Hinkley controversy was what kind of health risk the substance poses as a trace water pollutant. Sharp quotes toxicologist Sharon Wilbur at the U.S. Department of Health and Human Services, who flatly contradicts Brockovich on whether the contaminant could have caused the various health problems sued over.

* Sharp also unearths allegations leveled by the Brockovich-side lawyers and by others that the first set of lawyers PG&E had used on the case had engaged in potentially serious misconduct, including privacy invasion by hired gumshoes. It’s hard to know how much weight to give these allegations, but if credited even in part they might suggest a motive for the utility to accept a hasty settlement of the case on unfavorable terms.

Some of Sharp’s sources evidently have a bit of an ax to grind against arbitration as an institution, but the article is still a triumph of sheer reportorial legwork, too rich in detail to summarize in one day. Tomorrow: the judges’ posh Mediterranean cruise, mounting press interest in the case, and the politics of it all. (Kathleen Sharp, “Erin Brockovich: The Real Story”, Salon, April 14).

April 17 – Annals of zero tolerance: kindergartners’ “bang, you’re dead”. Four kindergartners playing “cops and robbers” at Wilson School in Sayreville, New Jersey were given three-day suspensions after they pretended their fingers were guns and played at shooting each other. “This is a no tolerance policy. We’re very firm on weapons and threats,” said district superintendent William L. Bauer. “Given the climate of our society, we cannot take any of these statements in a light manner.” (“N.J. kindergartners suspended for threats during playground ‘cops and robbers’ “, AP/Court TV, April 6; see also Nov. 20 commentary).

April 17 – Another sampling of visitors. The hundreds of diverse websites that link to us include the Wyoming Libertarian Party (“I’d say this country is overlawyered, but some trial lawyer will probably sue me for saying it”), Arrosage Lemay, a pest control and lawn maintenance enterprise in Notre-Dame- de- la-Salette, Québec (catch the antennae-wiggling animations), and Ridgefield Focus, a community site serving a town of which we’re very fond, Ridgefield, Ct.

April 14-16 – Great moments in defamation law. At a sentencing hearing for James Hermann, who’d pled guilty to armed robbery, defense lawyer Robin Shellow argued that despite her client’s extensive criminal record (six previous adult convictions) he deserved to be treated with some leniency because he’d been struggling with a heroin problem. But this last statement of hers was mistaken: though Mr. Hermann admitted in a probation report that he was high on crack cocaine and Valium when he’d used a shotgun to rob a Milwaukee custard store owner, his drug use did not include heroin. Hermann proceeded to sue her for defamation, and although the judge in the criminal case said her slip hadn’t affected the length of the sentence either way, Hermann proceeded to line up an expert witness willing to testify that he’d “suffered psychological harm as the result of being called a heroin addict instead of a cocaine addict”, according to Shellow’s lawyer, Randal Arnold. Psychologist Paul M. Smerz told the court that Hermann had suffered “lessened sense of self-confidence, self-esteem and overall self-image” and even symptoms of post-traumatic stress disorder as a result of his attorney’s groundless comment. The case dragged on for two years and finally settled this spring as it was approaching trial when Shellow agreed to refund $500 of her original legal fee to Hermann. (Cary Spivak, “‘Hey, I use coke, not H’, robber says in suit v. his lawyer”, National Law Journal, Mar. 27).

April 14-16 – “Erin Brockovich”: plume of controversy. Julia Roberts’s screen appeal is undeniable, but how good’s the science? The New York Times‘ Gina Kolata joins the fray (title says it all: “A Hit Movie Is Rated ‘F’ in Science”, April 11), while Brockovich herself, who’s currently traversing the country helping organize toxic tort suits, spars with critic Michael Fumento in the letters column of the Wall Street Journal (letters exchange reprinted at Fumento website; Raphael Lewis, “Opening in a toxics case near you, Erin Brokovich” [sic], Boston Globe, Apr. 1; Edward Lewine, “Writer’s Slam Angers Real Erin Brockovich”, New York Daily News, Apr. 2; this site’s March 30 commentary).

April 14-16 – “Saints, sinners and the Isuzu Trooper”. Column by Washington Post‘s Warren Brown on Consumer Reports/Isuzu Trooper dustup (see April 10) finds plenty to criticize on both sides. “If anything is to be learned from the Isuzu-CU conflict, it is, perhaps, that both David and Goliath deserve equally aggressive scrutiny because both are equally capable of screwing up.” (“Saints, Sinners and the Isuzu Trooper”, April 13 — online chat with Brown scheduled for Monday 11 a.m. EST at Post site).

April 14-16 – Police resent political gun-buying influence. Part of the developing plan for strong-arming independent gunmakers into a Smith & Wesson-type settlement is to get cities and counties to redirect police-gun purchases toward favored manufacturers such as S&W and any companies that sign similar agreements. But many on police forces see it as playing politics with their lives to select guns based on anything other than their optimality for police use, which requires ease of control and use, speed, accuracy and reliability under extreme conditions. (Smith & Wesson has not been a popular brand in police use.) “Adherence to a particular political philosophy” shouldn’t play a part in gun purchases, Gilbert G. Gallegos, national president of the Fraternal Order of Police, told the Los Angeles Times. A few jurisdictions like Atlanta, Berkeley and San Mateo County, Calif. have signed onto the program, but the L.A. County Sheriff’s Department is planning to stick with its 9-mm Berettas. “Politics aren’t going to enter into how we choose our firearms,” said Capt. Garry Leonard of the department. “When you think of what we do for a living, we just can’t take chances.”

Glock general counsel Paul Jannuzzo said that, in a recent phone call, Housing Secretary Cuomo asked about his company’s sales to police and “made it fairly clear” that those sales would be at risk if the company didn’t play ball. “I think the expression he used was, ‘I have a lot of push with these Democratic mayors,’” said Jannuzzo. “There was no doubt in my mind that I’d just been threatened with economic extortion”. Told about the charge, Secretary Cuomo, ever the model of grace in controversy, retorted: “It’s an interesting response from the subject of an antitrust investigation,” referring to the trade-restraint probe recently launched against the gun industry for allegedly shunning S & W (see March 31). (Richard Simon and Eric Lichtblau, “Police Feel Pressure to Choose the ‘Code’”, Los Angeles Times, Apr. 9).

April 13 – Judge dismisses suit blaming entertainment biz for school shootings. U.S. District Judge Edward Johnstone has dismissed an action on behalf of school shooting victims in Paducah, Ky. against 25 enterprises whose movies, videogames and Internet sites had allegedly incited teenage gunman Michael Carneal to go on his rampage (“Federal judge dismisses lawsuit against movie, video game makers”, AP/Freedom Forum, April 7; “Suit blaming media for Kentucky killings dismissed”, CNN/Reuters, April 7; see July 22 and Nov. 2 commentaries). Plaintiffs vowed to appeal the ruling, which came shortly after a Senate hearing at which conservative Sen. Sam Brownback (R-Kansas) lent a sympathetic ear to the lead plaintiff’s charges against the videogame industry (“Witness tells Senate panel: Video games taught teen killer how to shoot”, AP/Freedom Forum, March 22).

Other litigation continues to move forward around the country seeking to blame the media and game makers for school violence, including the Columbine High School massacre in Colorado. Lt. Col. David Grossman, a former Army psychologist signed as an expert witness by the plaintiffs in the Carneal case, has been much in the press lately denouncing such games as Doom and Quake (“The Games Kids Play”, John Stossel/ABC News 20/20, Mar. 22). And Vermont state senator Tom Bahre (R-Addison) has introduced legislation in that state which would hold makers of graphically violent movies and other media liable for the costs of acts of real-life violence that their products are deemed to have incited. An AP report says Bahre’s bill would “place the burden of proof on those producers to show that their depictions of violence did not cause an actual event.” (“Vermont lawmaker wants to hold media responsible for violence”, AP/Freedom Forum, Dec. 29).

April 13 – Bill Gates and the Nasdaq: why didn’t the Munchkins sing? “When the wicked witch is dead, you expect the Munchkins to break out in song. But that was not the reaction in the technology sector this week, after a federal judge found Microsoft Corp. guilty of behaving like a bully.” Nasdaq, composed heavily of tech firms that Microsoft is supposed to have victimized, fell off a cliff. Paradoxical? “Economists Thomas Hazlett of the American Enterprise Institute and George Bittlingmayer of the University of California at Davis recently published a study in the Journal of Financial Economics documenting that whenever the government’s antitrust suit scores a victory, an index of non-Microsoft computer stocks falls — and when Microsoft wins a round, computer stocks rise.” (Steve Chapman, “The Real Cost of the Microsoft Verdict”, Chicago Tribune, April 6).

April 13 – “Congress passes asset forfeiture bill”. Long awaited reforms will make it harder for the government to seize assets first and ask questions later. “The legislation would shift the burden of proof in asset forfeiture cases from the property owner to the government. … It allows federal judges to release property to the owner if continued government possession causes substantial hardship to the owner, extends the time a property owner has to challenge a seizure in court and ends the requirement that a person seeking to recover property post a bond with the court worth 10 percent of the property value.” (AP) To placate prosecutors, however, the bill also gives law enforcement officials a number of new powers. (Jim Abrams, “Congress passes asset forfeiture bill”, AP/Topeka Capital-Journal, April 12; Stephen Labaton, “Congress Raises Burden of Proof on Asset Seizures”, New York Times, April 12).

April 13 – Regulation through litigation: opinion pieces. The topic’s starting to arouse significant attention among the commentariat, and not a moment too soon:

* We think he’s joking dept.: Univ. of Colorado law prof Paul Campos (Jurismania) foresees a gigantic class-action suit against “Big Auto” (“Where are next brave lawyers?”, Rocky Mountain News (Denver), April 11).

* “First, tobacco. Then, guns. Now, Microsoft. Does anyone seriously believe the class-action legal industry will stop there?” asks Wall Street Journal editorialist John Fund, who sees reformist sentiment rising: “In North Dakota and Texas, new ‘sunshine’ laws give the legislature oversight of government contracts with outside lawyers.” (“Litigation gold rush”, MS/NBC, April 4).

* Today’s less-than-spontaneous agitations against each newly designated Industry-To-Hate remind the Kansas City Star‘s E. Thomas McClanahan of China’s old “mass political campaigns” in which the populace was whipped up to support a purge of the “Four Bads” or of “capitalist roaders”. Quotes this site’s editor, too (“Bypassing the checks and balances”, Apr. 10 (click “columns”, then scroll list))

* “None dare call it extortion” is the Las Vegas Review-Journal‘s take (editorial, April 7).

April 12 – Gore amid friendly crowd (again). Bill Clinton and Al Gore have been racing around the country to attend a seemingly unending series of fund-raisers thrown by such prominent personal-injury lawyers as Dallas’s Fred Baron (see Feb. 14) and Cincinnati’s Stanley Chesley (see Mar. 30). Last Thursday it was the turn of Palm Beach, Fla. tobacco-fee tycoon Robert Montgomery (see Aug. 21-22), for a $10,000-a-plate dinner graced by the Veep.

The Washington Post‘s Ceci Connolly writes that at yet another recent lawyer-hosted fund-raiser — this one at the home of Houston’s Denman Heard — Democratic National Committee Chairman Ed Rendell said, with Gore looking on, “we are proud as a party to have the support of the trial lawyers. It is nothing we apologize for”. “Gore summed up the differences this way: ‘We fight for the working people, for those who don’t have the resources,” he said. Republicans ‘draw from the wealthiest, most powerful and well-heeled.’”

To be sure, Mr. Montgomery, who hosted last Thursday’s Gore event, could give most GOPers a lesson or two about what it means to be powerful and well-heeled: together with some colleagues he pulled off the Florida tobacco caper, representing the state government and nabbing what was at the time the biggest legal fee in history, $3.4 billion, his own share amounting (per George magazine’s estimate) to some $678 million. Montgomery is also a longtime donor to political candidates ranging from the Kennedy family to Hillary Rodham Clinton. Maybe it’s not so surprising after all that the Democratic National Committee raised more money in the first quarter than its Republican counterpart. (Ceci Connolly, “Democrats Have No Argument with Trial Lawyers”, Washington Post, April 9; Jonathan Salant, “Democrats raise more money than Republicans”, AP/CNN, April 7).

A proper account of the Florida tobacco affair for a national readership remains to be written. For an introduction, check out the following 1998 coverage by Lucy Morgan in the St. Petersburg Times: “Tobacco trial lawyers say they had to hire [Governor Lawton] Chiles’ friends”, March 25, 1998; “Tobacco team lawyer is called to account”, March 31, 1998 (“Did lawyers hired by Florida to fight the tobacco industry cough up more than $100,000 for the Clinton/Gore campaign in hopes of currying favor with the administration? And were those campaign contributions illegally disguised as legal expenses — and actually paid by the tobacco industry?” — with eyebrow-raising details about a Fort Lauderdale meeting between the tobacco trial team and Vice President Gore on Oct. 15, 1996, shortly before the 1996 election); as well as “Tobacco and torts” (editorial by the paper), Dec. 19, 1998 (calling the eventual arbitration award to lawyers “breathtakingly excessive … It’s almost disgusting to think of such riches going to a few people who gave relatively little time and expertise to ‘earn’ them. … receiving billions of dollars in fees for a case that never went to trial is utterly unconscionable. … [the lawyers have put] a face on greed”.) (DURABLE LINK)

April 12 – Triumph of plastic foliage. New York Times home and garden section advises that artificial plants are making inroads in both interior commercial decor and landscaping; unlike the live kind, “they don’t house pests or provoke allergic reactions (and subsequent lawsuits)”. (William L. Hamilton, “The Flowers That Bloom in Spring, Ha Ha”, New York Times, April 6).

April 12 – Cops shoot civilian; city blames maker of victim’s gun. In a suit filed last week, the city of Riverside, Calif. says gunmaker Lorcin Engineering should bear legal responsibility for the shooting by Riverside police of 19-year-old Tyisha Miller of Rubidoux, because it sold the weapon she had on her lap at the time she was shot in a locked, idling car. Officers from the force were later fired for the tactics they used in the shooting, which led to a wrongful-death lawsuit by Miller’s survivors. The city is now seeking to dodge that suit by impleading Lorcin on the theory that had it provided better user training Miller might have known not to keep a gun on her person in a way that approaching officers might interpret as threatening to them, though her gun was later found to be inoperable. Lorcin shuttered its plant in nearby Mira Loma and declared bankruptcy last year, but an attorney for the city suggests it still has money. “Every single claim against Lorcin was dismissed, but at a very expensive cost of $100,000 here, $100,000 there” in legal fees, said owner James Waldorf. (Lisa O’Neill Hill and John Welch, Riverside Press-Enterprise, April 7) (discuss at Press-Enterprise site).

April 12 – Endorsed again. “oh man, this is great. overlawyered.com. check the left side for ‘personal responsibility’ …” — thus one of the April 10 entries on Array, a weblog specializing in art and applied digital technology, but with a wide miscellany of other topics in there too.

April 11 – Stuart Taylor, Jr., on Smith & Wesson deal. His new column on law-stretching gun and tobacco suits is must reading even aside from the handsome plug it gives this website (see below). “One thing I am sure of is that the Framers of the Constitution created Congress — and assigned to it ‘all legislative powers herein granted’ — to set policy for the nation on such complex questions of social engineering [as gun control]. They also made it hard to enact legislation unless backed by a fairly broad national consensus. That’s a far cry from what’s going on now….

“[T]he gun litigation represents a deeply disturbing way of making public policy. It was started by private lawyers and municipalities with big financial interests at stake. The courts have largely been bystanders as the Clinton Administration and its allies have sought to bludgeon gunmakers into settling before trial.” (Stuart Taylor Jr., “Guns and Tobacco: Government by Litigation”, National Journal, March 27; NJ yanks these free columns after offering them briefly as a teaser, so catch this one now.)

P.S. Okay, and now about that plug: “For a fuller taste of these and other peculiar workings of our legal system, with copious links to news reports, check out an amusingly depressing Web site called Overlawyered.com, created and edited by Walter K. Olson of the conservative-libertarian Manhattan Institute,” writes Taylor. “Amusingly depressing” — an ideal slogan for our banner ads (if we ever get around to devising them; someone wanna help volunteer?).

April 11 – Oops: D.A.’s and judge’s fwding of sex pic deemed “unfortunate event”. Dateline Las Vegas: “A pornographic photograph sent by e-mail to dozens of Clark County employees originated from a deputy district attorney’s computer. The e-mail was then forwarded to a senior judge who passed it on to other county workers.” Apparently the sexually explicit photo was meant to reach only one or two recipients, but was inadvertently blind-cc’d to a longer list. County manager Dale Askew said those involved likely would be suspended without pay. “Needless to say employees were not happy receiving it because it came across their computer unsolicited,” said county spokesman Doug Bradford, who called the episode “an unfortunate event.” How lucky for all concerned that they weren’t at a big private firm, where skittishness over harassment liability might have gotten the senders fired. (Adrienne Packer, “Obscene e-mail traced to deputy DA”, Las Vegas Sun, Feb. 9). (DURABLE LINK)

April 11 – Krugman on MS: his “blood runs cold”. “I don’t know anyone outside Seattle who is really pro-Microsoft. But a lot of us are, at least mildly, anti-anti-Microsoft. That is, we worry that the crusade against Bill Gates sets a bad, even dangerous precedent. …

“The anti-anti-Microsoft case does not deny that there is some truth to that story [that Redmond's market dominance and hard-guy tactics caused a climate of fear among its competitors], but asserts that taking punitive action will be the worse of two evils because it will create a different, and worse, climate of fear — fear that success itself will be punished. Today Microsoft, tomorrow Intel and eventually (as soon as somebody figures out what it does) Cisco.”

“… [W]hen I hear that a coalition of states is demanding damages from Microsoft, as if Windows caused lung cancer; well, my blood runs cold. I know that there is an intellectually respectable case against Microsoft, but I’ve got a bad feeling about where we are going.” (Paul Krugman, “Rights of Bill”, New York Times, April 9).

April 11 – Chat into the microphone, please. Securities and Exchange Commission announces plans to acquire automated software to trawl websites, Usenet and Yahoo/AOL-type bulletin boards searching for phrases like “get rich quick” and “free stock” which might signal illicit securities promotion. The results, including email addresses and other identifying information about posters, will be copied into a giant database and indexed for the convenience of SEC investigators whose job is to file civil charges against persons suspected of stock-jobbing. One company invited to submit bids on the system, the big accounting firm of Pricewaterhouse Coopers LLP, has already bowed out of consideration, saying it had “serious concerns about the implications for the privacy of individuals”. The proposal “is equivalent to, in my opinion, wiretapping … the equivalent of planting a bug,” said Larry Ponemon, a partner at the firm in charge of privacy issues. Members of Congress have begun to express concern: “Engaging in such a wide level of monitoring will have a chilling effect on free speech online,” Rep. Bob Barr (R-Ga.) wrote to SEC Chairman Arthur Levitt. “While I understand the need to prevent securities fraud, federal agents should not be allowed to sift through the conversations of millions of innocent parties in order to do so.”

Levitt says there’s little difference in principle betwen current practice — in which flesh-and-blood SEC attorneys laboriously traverse the Web looking individually for possible indicia of fraud — and the new proposal. The commission also says it will keep the data confidential and throw out information that does not establish wrongdoing. Other federal agencies are eager to follow the SEC’s lead, such as the Commodity Futures Trading Commission, which has begun talking to vendors: “For us it’s a very exciting prospect,” says acting CFTC director of enforcement Phyllis J. Cela. (Michael Moss, “SEC’s Plan to Snoop for Crime on Web Spraks a Debate Over Privacy”, Wall Street Journal/ZDNet, March 28; Marcy Gordon, “SEC Plans Web Surveillance System”, AP/Excite, March 29; Michelle Finley, “SEC Plan: Free Speech Violation?”, Wired News, March 29; “House panel questions automated surveillance by SEC”, Reuters/Excite, April 4). (DURABLE LINK)

April 11 – Attention librarians. Starting immediately, we’ll be dividing each new month’s archives into three, rather than two, sections; that way readers with low bandwidth won’t have to wait quite so long for those pages to load.

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