- Speaking of prostitutes and politicians, Deborah Jeane Palfrey has come to recognize that Montgomery Blair Sibley (Oct. 29; May 4; etc.) may not be the best lawyer for her. [WTOP via BLT]
- Update: Nearly two years later, trial court gets around to upholding $2 million verdict in lawn-mower death we covered Jun. 16 and Aug. 18, 2006. [Roanoke Times (quoting me); opinion at On Point]
- In other lawn mower news, check out Jim Beck’s perceptive comment on a Third Circuit lawn-mower liability decision.
- Update: Willie Gary wins his child-support dispute. [Gary v. Gowins (Ga.); Atl. Journal-Const.; via ABA Journal; earlier: Nov. 2]
- Tobacco-lawyer Mike Ciresi drops out of Minnesota senate race. [WCCO]
- Belfast court quashes libel ruling against restaurant critic. [AFP/Breitbart]
- Trial-lawyer-blogger happy: jury returned $1.25 million med-mal verdict for death of totally disabled person suffering from end-stage renal disease, pulmonary hypertension, oxygen dependent lung disease, and obesity, after rejecting businessperson from jury “for cause” because he was head of local Chamber of Commerce. [Day]
- Car-keying anti-military attorney Jay Grodner faced the law in January; here’s the transcript. [Blackfive]
- Anonymous blog post not reliable evidence of factual allegations. [In re Pfizer, Inc. Sec. Litig., 2008 WL 540120 (S.D.N.Y. Feb. 28, 2008) via Roberts, who also reports on fee reduction in same post]
- Clinton’s nutty mortgage plan. [B&MI (quoting me)]
- A supposed DC cabbie’s take on DC v. Heller. [DC Cabbie blog]
Unlike his running mate John Edwards, John Kerry has willingly disclosed the identities of his “bundlers”, the financiers responsible for raising large amounts of money in grouped donations. (He has 266 who’ve come in at the $100,000+ level, compared with more than 525 for George W. Bush.) Names familiar to readers of this site are well represented: “Trial lawyers who represent injured people in suits against business are prominent Kerry fans. Among his $100,000 Vice Chairmen are Florida plaintiff’s lawyer Kirk Wager, who hosted Mr. Kerry’s first presidential fund-raiser at his Coconut Grove home in December 2002, and attorneys Richard Scruggs of Mississippi and John Coale of Washington, both part of the tobacco companies’ $206 billion settlement with 46 states.” However, Mr. Kerry (like Mr. Bush, but unlike Mr. Edwards) also raises large amounts from other types of law firms, including firms known for lobbying and for general business work, including Mintz Levin and Piper Rudnick. (Wayne Slater, “Vested interests in Kerry”, Dallas Morning News, Jul. 25).
“Lawyers, especially trial lawyers, are the engine of the Kerry fundraising operation,” reports the Washington Post. “Lawyers and law firms have given more money to Kerry, $12 million, than any other sector. One out of four of Kerry’s big-dollar fundraisers is a lawyer, and one out of 10 is an attorney for plaintiffs in personal injury, medical malpractice or other lawsuits seeking damages. …
“Among the trial lawyers who raised money for Kerry early in the campaign were Michael V. Ciresi of Robins, Kaplan, Miller & Ciresi LLP, who represented Blue Cross and Blue Shield of Minnesota in its successful $6.5 billion suit against the tobacco industry, and Michael T. Thorsnes, who recently retired from his San Diego law firm after winning $250 million in settlements and verdicts.” After Kerry locked up the race, “One trend was a sharp increase in the number of trial lawyers joining the Kerry fundraising campaign. Among those soon joining as major fundraisers were John P. Coale, one of the nation’s most prominent trial lawyers, whose better-known cases include the Union Carbide disaster in Bhopal, India, and at least 16 plane crashes; Robert L. Lieff, founding partner of Lieff Cabraser Heimann & Bernstein LLP, a San Francisco-based firm that lists four class-action settlements in 2004 alone totaling $176.5 million; and San Francisco lawyer Arnold Laub, whose firm Web site lists its participation in the $3.7 billion fen-phen settlement, a $185 million toxic chemical award and $4.5 million for a pedestrian accident case. … John Morgan, an Orlando lawyer whose firm specializes in medical malpractice, said he has helped raise more than $500,000 for Kerry.” (Thomas B. Edsall, James V. Grimaldi and Alice R. Crites, “Redefining Democratic Fundraising”, Washington Post, Jul. 24)(our politics archive).
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.
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.
“Updates” (baby Castano suit nixed in N.Y.), Dec. 26-29, 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”).
“A tangled Mississippi web“, Jun. 16-17, 2003; “Mississippi investigation heats up“, May 7, 2003; “‘High court judge had use of condo owned by group that includes trial lawyer’“, Oct. 11-13, 2002; “Rumblings in Mississippi“, Oct. 9-10, 2002.
Sen. Edwards, 2003: “More on Edwards’ law-firm donations“, May 8; “Edwards leads in fund raising“, Apr. 7-8; “‘Edwards doesn’t tell whole story’“, Mar. 4 (& letter to the editor, Mar. 31). 2002: “‘Bush urges malpractice damage limits’“, Jul. 29; “‘Edwards’ fund raising a strong suit’“, Jul. 18 (& Sept. 3-4); “‘The trials of John Edwards’“, May 20-21; “What big teeth you have, Sen. Edwards“, May 1-2; “Trial lawyer smackdown!”, Feb. 20-21. 2001: “Trial lawyer president?“, Mar. 9-11. 2000: The Veep that got away”, Aug. 15.
Politicians’ ATM, 2003: “‘Lawyers find gold mine in Phila. pension cases’“, Mar. 21-23; “ATLA’s hidden influence“, Jan. 21-22. 2002: “Some election results“, Nov. 7; “Campaign roundup“, Nov. 4-5; “Pa. statehouse race: either way, Big Law wins“, Oct. 24; “Trial lawyers and politics: Michigan, Texas“, Oct. 9-10; “Last-minute friends in Texas politics“, Jul. 22-23; “Trial lawyer smackdown!” (Scruggs vs. Sen. Edwards), Feb. 20-21. 2001: “Third Circuit cuts class action fees“, Sept. 25-26; “‘Trial lawyers derail Maryland small claims reform’” (Gov. Parris Glendening), July 25; “Villaraigosa and the litigation lobby” (Calif. assembly speaker), June 18; “Ness monster sighted in Narragansett Bay” (Rhode Island contributions by Ness Motley), June 7; “‘Nursing homes a gold mine for lawyers’” (Fla. lawyer said he probably gave $1 million to politicians last election cycle), Mar. 13-14; “‘Angelos made rare donation to GOP’” (Sen. Hatch’s campaign), Feb. 16-19; “Sen. Kennedy flies the trial-lawyer skies“, Jan. 8. 2000: “O’Quinn a top Gore recount angel“, Dec. 15-17; “California’s lucrative smog refunds” (Lerach and Gov. Gray Davis), Dec. 5; “Friend to the famous” (Williams Bailey), Oct. 12; “‘Money to burn’” (Ness Motley), Oct. 6-9; “I know [you] will give $100K when the president vetoes tort reform, but we really need it now“, Sept. 14, 2000 (& more coverage: Sept. 15-17, Sept. 19); “Clinton’s trial-lawyer speech, cont’d“, Aug. 1; “Trial lawyers give $500,000 as legislation heads to Senate floor“, Jun. 14-15; “Texas tobacco fees” (recycling into party politics), May 22; “Gore among friendly crowd (again)“, April 12; “Al Gore among friendly crowd“, Mar. 30; “‘Trial Lawyers Pour Money Into Democrats’ Chests“, Mar. 24-26; “Bill Clinton among friendly crowd“, Feb. 14; “‘Tracking the trial lawyers': a contributions database“, Jan. 21-23 (& Sept. 25-26). 1999: “Hurry with those checks“, Dec. 1; “Give, and receive“, Sept. 25-26.
Judicial elections, 2002: “Some election results“, Nov. 7; “Campaign roundup“, Nov. 4-5; “Mudslinging in Ohio high court races“, Nov. 1-3 (& Nov. 4-5); “Ohio’s high-stakes court race“, Oct. 16-17; “Judicial selection, the Gotham way“, Oct. 15; “Rumblings in Mississippi“, Oct. 9-10. 2001: “Don’t try rating our judges, or else” (Phila.), Oct. 24-25; “‘Philadelphia judicial elections still linked to cash’“, Oct. 12-14; “‘Reflections of a Survivor of State Judicial Election Warfare’” (Justice Robert Young, Mich.), July 3-4. 2000: “More election results” (Mich., Ohio), Nov. 9; “Michigan high court races” (and earlier coverage Aug. 23-25, May 15, May 9, Jan. 31, 2000; Aug. 6, 1999); “Just had to donate” (Mississippi), Nov. 3-5; “Ohio high court races“, Oct. 30 (and earlier coverage Aug. 18, Aug. 6, 1999); “Campaign consultants for judges“, Aug. 28.
Lobbying clout: “Florida: ‘New clout of trial lawyers unnerves legislators’“, Mar. 20, 2003; “Let’s go to the tape” (ATLA lobbies Sen. Grams), Apr. 27, 2000; “House passes liability reforms“, Feb. 24, 2000; “Sixth most powerful” (Only sixth? Trial lawyers among Washington lobbies), Dec. 10, 1999; “Calif. state bar improperly spent dues on politicking“, Aug. 25, 1999.
RN, 2003: “‘Public deceit protects lawsuit abuse’“, Mar. 15-16; “ATLA’s hidden influence“, Jan. 21-22. 2002: “Nader credibility watch” (calls fast-food restaurants “weapons of mass destruction”), May 24-26. 2001: “Channeling Chomsky” (Trade Center attacks), Oct. 22 (& Oct. 1); “Trial lawyers (some of them) yank Nader funding“, Feb. 16-19. 2000: “Election special: Nader non grata“, Nov. 10-12; “Coercive capitalism?“, Nov. 6; “Election roundup” (Nader “dashboard saint” to trial lawyers), Oct. 23; “RN’s illusions“, Sept. 22-24; “Bush-Lieberman vs. Gore-Nader?“, Aug. 14; “Nader cartoon of the year“, Jul. 31; “Nader, controversial at last“, Jun. 13.
“Friends in high places, cont’d” (Kansas governor), May 5, 2003.
“Politico’s law associate suspended over ‘runner’ use” (Louisiana), Feb. 14-16, 2003.
Lawyers as candidates: “To tame Madison County, pass the Class Action Fairness Act” (Ill. Senate seat), Jun. 12-15, 2003; “Some election results“, Nov. 7, 2002; “Campaign roundup“, Nov. 4-5; “‘Wealthy candidates give Democrats hope’“, Oct. 11-13, 2002; “Trial lawyer candidates“, Jul. 6, 2000 (& update Sept. 15-17: Ciresi defeated in primary bid); “Tort fortune fuels $3M primary win” (House race in W.V.), May 11, 2000 (& updates Oct. 23, Nov. 9 (lawyer defeated); “‘Lawyer’ label hurts at polls“, Dec. 8, 1999.
Congress, 2003: “To tame Madison County, pass the Class Action Fairness Act” (Ill. Senate seat), Jun. 12-15. 2002: “Some election results“, Nov. 7; “Campaign roundup“, Nov. 4-5; “Durbin’s electability“, Apr. 25. 2001: “‘Angelos made rare donation to GOP’” (Hatch), Feb. 16-19; “Philadelphia juries pummel doctors” (Sen. Arlen Specter), Jan. 24-25; “Sen. Kennedy flies the trial-lawyer skies“, Jan. 8. 2000: “Litigation reform: what a Democratic Congress would mean” (comments of Rep. Patrick Kennedy (D-R.I.)), Nov. 7; “Friend to the famous” (Williams Bailey), Oct. 12; “Owens Corning bankrupt” (House Judiciary Democrats), Oct. 6-9; “Veeps ATLA could love” (Durbin, D-Ill., and Cohen, R-Me.); “Trial lawyers give $500,000 as legislation heads to Senate floor“, June 14-15.
Pres. & Sen. Clinton, 2001: “Humiliation by litigators as turning point in Clinton affair“, May 24; “Push him into a bedroom, hand him a script” (Bill’s testimonial for tobacco lawyers), March 9-11. 2000: “Friend to the famous” (Williams Bailey & HRC), Oct. 12; “I know [you] will give $100K when the president vetoes tort reform, but we really need it now“, Sept. 14, 2000 (& more coverage: Sept. 15-17, Sept. 19); “Clinton’s trial-lawyer speech, cont’d“, Aug. 1 (& “a footnote”, Aug. 2); “Clinton’s date with ATLA“, Jul. 31; “Bill Clinton among friendly crowd“, Feb. 14. 1999: “Gun litigation: a helpful in-law” (Hugh Rodham surfaces as middleman in gun cases), Oct. 25; and see 2000 campaign.
State attorneys general, 2002: “Some election results“, Nov. 7; “Campaign roundup“, Nov. 4-5; “Spitzer riding high” (N.Y.), Jun. 17-18; “Microsoft case and AG contributions“, Apr. 3-4; “Like father, like daughter?” (Lisa Madigan, Ill.), Jan. 7-8. 2001: “Vast new surveillance powers for state AGs?” (“biggest showboaters in American politics”), Sept. 25-26. 2000: “Ness Motley’s aide-Gregoire, July 17; “Rewarded with the bench” (Connecticut AG Blumenthal), June 12. 1999: “Illinois tobacco fees“, Oct. 16-17; “My dear old tobacco-fee friends” (Kansas attorney general picks her old law firm for lucrative contract suing tobacco firms), Oct. 11; and see state tobacco fees.
“‘”Little” done for firm, Rendell says’” (law firms provide no-show jobs for politicians), May 9, 2002.
“Texas trial lawyers back GOP PAC“, Mar. 12, 2002.
“Update: Alabama high court reverses convction in campaign-tactics case“, Jul. 7, 2001; “Update: Alabama campaign-tactics case“, Aug. 31, 2000; “‘Bama bucks“, Nov. 16, 1999; “Alabama story goes national“, Sept. 1; “Playing rough in Alabama“, Aug. 26, 1999.
“Chapman, Broder, Kinsley on patients’ rights” (Kinsley: “pretty true” that Democratic Party in lawyers’ pocket), Jun. 28.
“‘Lender hit with $71M verdict’” (Mississippi legislators), Jun. 15-17, 2001.
“Trial lawyer heads Family Research Council“, Mar. 2-4, 2001.
Archived entries on the 2000 presidential race and recount can be found here.
“Monitor vote fraud, get sued for ‘intimidation’“, Oct. 24, 2000.
“New page on Overlawyered.com: trial lawyers and politics” (this page launched), Jul. 28-30, 2000.
“Lenzner: ‘I think what we do is practice law’” (private investigator’s tactics), Jul. 28-30, 2000.
“Trial lawyers’ political clout“, May 8, 2000.
“Progressives’ betrayal” (Jonathan Rauch), Apr. 4, 2000; “Trial lawyers on trial” (Reader’s Digest), Dec. 23-26, 1999; “The reign of the tort kings“, Oct. 26; “Arbitrary confiscation, from Pskov to Pascagoula” (Michael Barone), Jul. 24, 1999.
“From the Spin-To-English Guide” (“access to justice” rhetoric), Oct. 25, 1999.
November 8-10 — By reader acclaim: “Father files suit after son fails to win MVP award”. “A Canadian father is suing the New Brunswick Amateur Hockey Association after his 16-year-old son failed to win the league’s most valuable player award. Michael Croteau is seeking about $200,000 in psychological and punitive damages from the association. He also demands that the MVP trophy be taken from the winner and given to his son, Steven.” (“Father sues team for not naming son MVP”, AP/ESPN, Nov. 7; Shawna Richer, “Father files suit after son fails to win MVP award”, Globe and Mail, Nov. 7). (DURABLE LINK)
November 8-10 — Welcome Weekly Standard readers. The magazine’s “Scrapbook” feature generously refers to us as “One of [its] favorite sites” (“The Scrapbook: DeWayne Wickham, Wellstone, and more”, Nov. 11)(requires print sub + reg) in the course of hailing a Miami federal judge’s recent ruling that the Americans with Disabilities Act does not require website operators to redesign their offerings for the convenience of blind customers (see Oct. 22). (DURABLE LINK)
November 8-10 — Asbestos opinions. The Supreme Court has just heard oral argument on Norfolk & Western Railway Co. v. Ayers, a case raising the question whether railroad workers who have not in fact developed cancer from exposure to asbestos can nonetheless sue under federal law for fear of same (Dahlia Lithwick, “Supreme Torts: How to get paid a million dollars for your phobias.”, Slate, Nov. 6; Marcia Coyle, “Litigating Over the Fear of Cancer”, National Law Journal, Oct. 30). The recent massive combined asbestos suit in West Virginia has served to expose the rift between plaintiffs’ counsel whose clients are seriously sick, and those whose strategy leads them to recruit other kinds of clients (Lisa Stansky, “Unusual Clash in Asbestos Case”, National Law Journal, Oct. 31). In the latest of several scorching columns he has written on the controversy, Stuart Taylor, Jr., charges that “lawyer-plutocrats continue to obscenely enrich themselves by using massive asbestos lawsuits and a disgracefully dysfunctional litigation system to extort billions of dollars from American consumers every year. The lawyers blackmail mostly blameless companies, while cheating the real victims of asbestos. This scandal in turn dramatizes how our lawsuit industry often operates as an engine of injustice — and as a drain on the economy, an inadequate vehicle for compensating people actually harmed by corporate wrongdoing, and a transparent fraud in its pretensions to punish those responsible for such wrongdoing.” (“Greedy Lawyers Cheat Real Asbestos Victims”, National Journal/The Atlantic, Oct. 1). See also James A. Lacey, “Asbestos Suits: Worse Than Enron”, New York Post, Oct. 9. (DURABLE LINK)
November 8-10 — Munched zoo animals, gets six months severance. “A German zookeeper, fired last month for eating animals in a town zoo, has been awarded six-months severance pay after reaching a settlement in a labour court. The town of Recklinghausen, north of Cologne, fired the zookeeper after he was caught barbecuing five Tibetan mountain chickens and two Cameroonian sheep at the zoo, popular with children who were allowed to stroke the animals. … Germany’s laws make it extremely difficult for employers to fire workers.” (“Animal feast zookeeper win pay claim”, Yahoo/UK Reuters, Nov. 7) (DURABLE LINK)
November 8-10 — “Lawyers Fight Over Louima Case Fees”. Continuing the tawdry saga last aired in this space July 24, 2001: “The Abner Louima police brutality case resurfaced in federal court Wednesday, as attorneys disputed the distribution of nearly $3 million in attorney fees amid accusations of slipshod lawyering, client poaching and greed. Johnnie L. Cochran, Peter Neufeld and Barry S. Scheck have filed a motion to prevent Louima’s first two lawyers — Carl W. Thomas and Brian Figeroux — from receiving any portion of the fees associated with the record $8.75 million settlement Louima received from New York City.” (Tom Perrotta, New York Law Journal, Oct. 18; “Louima’s first team of lesser-known attorneys seek share of $3 million”, AP/CNN, Oct. 18). “According to Scheck’s testimony, the relationship between the two groups of lawyers was tense from the very beginning, with members of both teams launching racial slurs.” (“Lawyers Fight Over Fees From Louima Settlement”, (WNBC-TV, Oct. 17). (DURABLE LINK)
November 7 — Some election results. The Senate results, as will be surmised, were a spectacular rout for organized trial lawyer interests, which had spent heavily to defend Democratic control of the upper chamber. (Another key litigation lobby ally, Sen. Dick Durbin (D-Ill.) (Jul. 7, 2000) did not face serious challenge and won easy re-election.) Of the three extremely wealthy trial attorneys who ran for U.S. House seats in West Virginia and Florida (Oct. 11-13), all lost by margins of 60-40 or worse (Humphreys, Jacobs, Hogan). And all of the nationally publicized state supreme court races seem to have been resolved in a manner favorable to litigation reformers. Mississippi Supreme Court Justice Chuck McRae, widely viewed as symbolizing his court’s runaway-litigation faction (Sept. 9-10), lost badly, actually coming in third in a three-way race with 23 percent of the vote. (Antoinette Konz, “Dickinson takes high court position”, Hattiesburg American, Nov. 6). Despite a nasty ad campaign against them (Nov. 1-3), Maureen O’Connor and Evelyn Stratton won convincing victories for seats on the Ohio high court, whose balance of power may shift as a result. Judges Robert Young (Michigan) and Harold See (Alabama), who have drawn trial lawyer fire in the past, were both re-elected, albeit narrowly in See’s case.
In governor’s races, on the other hand, there was little to cheer about, with trial-lawyer-backed candidates pulling out mostly narrow victories in Michigan, Oregon and Tennessee. We never expect much good news to come out of attorney general races, and were unsurprised to see New York’s Eliot Spitzer and Connecticut’s Richard Blumenthal glide to re-election; we’re also expecting the worst from Illinois’s incoming Lisa Madigan (Jan. 7). But we note GOP takeovers of the AG’s office in Michigan and Florida, as well as retention of the crucial Texas post. (full list at NAAG site)
A footnote: one of the engineers of the great 1998 tobacco heist, Florida Attorney General Bob Butterworth, was term-limited and deigned to run instead for a state senate seat in Broward/Palm Beach, but lost to the Republican candidate (WSVN-TV, Nov. 6). This continues the series of political pratfalls by which key players in the tobacco affair — the list includes former attorneys general Hubert Humphrey III of Minnesota, Dan Morales of Texas and Scott Harshbarger of Massachusetts, and Minnesota private attorney Michael Ciresi — have come up short when they tried to run for other offices. (DURABLE LINK)
November 7 — Scourge of the Super-Size order. The hullabaloo over suing fast-food chains has been great publicity for Washington-based law prof John Banzhaf, who finds himself the subject of a profile in the Washington Post (Libby Copeland, “Snack Attack”, Nov. 3), not to mention all the publicity furthered by his own website and its obesity links. Less respectful views are offered by syndicated columnist Doug Bandow (“Lawyers run amok”, TownHall, Nov. 5) and Southern restauranteur Robert St. John (“In state’s legal climate, ‘I could sue, … retire to Hawaii'”, Hattiesburg American, Oct. 15). (DURABLE LINK)
November 6 — Notation on Scruggs’ court file: to be “kept away from the press”. “Even as famed Pascagoula trial lawyer Dickie Scruggs testified in Hattiesburg Tuesday in a lawsuit over legal fees from asbestos litigation, records of the lawsuit were being withheld from the media by Jackson County officials. The file for the case … contains the original complaint in the lawsuit between Scruggs’ firm and Merkel & Cocke, a Clarksdale law firm that also handled asbestos cases in the 1990s. Scruggs believes that Merkel & Cocke owes him money for a case that the firm and Scruggs worked on together. … A handwritten note attached to the court file in Jackson County, found by a Sun Herald reporter, said, ‘This file is being kept away from the press/media, etc., but is not under seal per Court Order…’ The word ‘not’ was underlined twice for emphasis.” (Beth Musgrave and Karen Nelson, “Scruggs’ case file being kept away from media”, Biloxi Sun-Herald, Oct. 30). The next day county officials relented and agreed to let the newspaper see the file (“Court opens Scruggs file to newspaper”, Oct. 31). The paper’s editorialists call the withholding of the file “brazen” and “no innocent mistake”. (“Public records are not private property of government officials” (editorial), Oct. 31). (DURABLE LINK)
November 6 — Choirgirl vs. cathedral. In Britain, a judge has dismissed the complaint that 13-year-old choirgirl Pollyanna Molloy filed against the Dean and Chapter of Lincoln Cathedral (consecrated 1092) after she was passed over for a “cope”, a senior chorister position. Molloy says she was “utterly destroyed” to learn that a less experienced girl had been chosen for the honor, and her lawsuit claims damages for mental anguish. Molloy’s parents say they plan to appeal the judge’s order. (“Judge throws out choirgirl’s writ”, Lincolnshire Echo, Oct. 30; Jonathan Petre, “Girl sues cathedral for choir honour ‘snub'”, Daily Telegraph, Sept. 10). (DURABLE LINK)
November 6 — “Google sued over search ratings”. “Top billing in Google search results has become so coveted that one Web hosting company is suing for it. Search King, an Oklahoma City-based Web site network and advertising seller,” claims in its federal complaint that the popular search service “purposefully reduced Search King’s value, as well as that of Web sites hosted by Search King,” by downgrading its rankings. “According to the complaint, the Web hosting company in August started the PR Ad Network — an advertising network in which it sold text links on the popular Web sites to get them a better listing in Google’s results.” Google has recently been reported to have cracked down on “link farm” techniques by which sites are artificially induced to link to each other for purposes of boosting the beneficiaries’ search results. (Stefanie Olsen, ZDNet, Oct. 22). (DURABLE LINK)
November 4-5 — Campaign roundup. As we prepare to vote:
* Election Day is just the start: “both major parties have recruited unprecedented armies of lawyers — at least 10,000 on the Democratic side — for possible recount battles but also to keep an eye on voting procedures. …The campaign’s tone also shows the indelible mark of the 2000 election. The [Florida] recount battle signaled that lawyers can be as important as voters in shaping the outcomes of tight races.” Elections expert Larry Sabato says we “may not know for sure who controls the House and Senate until December or January.” (Gail Russell Chaddock, “As vote arrives, lawyers are ready”, Christian Science Monitor, Nov. 4). More: John Fund, “Have You Registered to Sue?”, OpinionJournal, Nov. 6.
* Medical malpractice reform has flared as an issue in races across the country. A very small sampling: the Tennessee governor’s race (Bill Poovey, “Hilleary says malpractice suit awards need a limit”, Knoxville News-Sentinel, Nov. 1); the Texas attorney general’s race (Jim Belew, “Abbott touts solution for healthcare”, Conroe Courier, Oct. 31); the Oregon governor’s race (“Governor hopefuls respond to readers”, Salem Statesman-Journal, Oct. 28 — scroll to near end); the Ohio high court races (“Taft says a GOP high court will fix malpractice problems”, Toledo Blade, Oct. 31; the Maryland governor’s race (“Maryland medical society turns against Townsend”, Baltimore Sun, Oct. 31); Pennsylvania’s 13th District U.S. House race (John Anastasi, “Doctors group backs tort reform supporters”, PhillyBurbs.com, Nov. 3); the Florida governor’s race (Mary Ellen Klas, “Candidates clash on medical liability”, Palm Beach Post, Oct. 16); and Mississippi state legislative races (Matthew Coleman, “Lawyers’ group targets Lincoln County senator”, Brookhaven (Miss.) Daily Leader, Oct. 9).
* In Connecticut, attorney Martha Dean has taken up the thankless task of running against the Northeast’s most successful political demagogue, Attorney General Richard Blumenthal, and has been making a spirited job of it (Edmund H. Mahony, “Attorney Takes On A General”, Hartford Courant, Oct. 19; Ray Hackett, “GOP challenger: Blumenthal’s high-profile cases waste tax dollars”, Norwich Bulletin, Oct. 28; “Dean says Blumenthal should stop Microsoft suit”, AP/WSFB-TV, Nov. 3). In news coverage no longer online, Dean has assailed Blumenthal for his continued denials that there was anything wrong with the way he picked his former law partners for the fabulously lucrative job of representing the state in the tobacco litigation (see Feb. 3 and Feb. 16, 2000).
* Of donations to federal candidates this election cycle by California’s 40 biggest law firms, which mostly represent corporations and other large institutions, 62 percent of the money has gone to Democrats, 35 percent to Republicans. (Jason Dearen, “Big-Firm Backing”, The Recorder, Oct. 29; “By the Numbers”). What, you thought it would be any different?
* In West Virginia’s hotly contested House race, asbestos plaintiff’s lawyer James Humphreys, “who made $10 million from his successful law practice last year, has spent $5.2 million of his own money in his quest to unseat Republican Shelley Moore Capito. Two years ago, the Charleston Democrat spent $6.1 million of his own cash in a narrow loss to Capito.” Make him spend it all, Shelley! (Karin Fischer, “Humphreys’ top contributor is himself”, Charleston Daily Mail, Oct. 24; “Bush pre-election drive stops in W.Va.”, Huntington Herald-Dispatch, Nov. 1; “Elections 2002: West Virginia House rematch”, UPI, Oct. 22).
More: A Washington Times editorial reminds us that trial lawyers have staked many, many chips on Michigan AG and gubernatorial candidate Jennifer Granholm; her GOP opponent, Lt. Gov. Dick Posthumus, “as the majority leader of the state senate tenaciously pushed the 1995 tort reforms through the legislature, and has been the personal-injury lawyers’ Public Enemy No. 1 ever since.” (“Lawsuit abuse”, Nov. 4; see Oct. 9). Those following Missouri politics will want to check out retired judge Ralph Voss’s website calling for voters to reject several incumbent judges. And here’s a list of local webloggers who will be following key races across the country (courtesy DailyPundit). (DURABLE LINK)
November 4-5 — “Lawyers who sue to settle”. L.A. Times profiles local attorney Morse Mehrban, a major user of California’s bounty-hunting charter Proposition 65, whose exploits include filing 400 separate claims against candle makers and more than a dozen against fireplace log makers, claiming their products emit toxic fumes when burned. “A group of Los Angeles-area hardware stores paid Mehrban $27,500 last year to settle a lawsuit claiming that discarded metal filings from key-duplicating machines posed a threat of lead contamination.” A Los Angeles judge who dismissed one of Mehrban’s cases — against a hotel for failing to post signs warning that cigarette smoke in public areas of the hotel was toxic — “likened the lawsuit to ‘racketeering.’ … Though [Mehrban] bills his time at as much as $400 an hour and drives a Mercedes roadster, he says he’s not in it for the money.”
“The plaintiff in many of Mehrban’s suits is Consumer Cause Inc., which describes itself as a statewide advocacy group. Its mailing address is the Brentwood home of Mehrban’s mother, Rafat Efraim, who for a time was listed on state incorporation records as the group’s only officer. According to Mehrban, Consumer Cause now has five officers, including his mother and fiancee. He declined to identify the other officers.” In one case Mehrban filed, “the manufacturer’s lawyer called Mehrban’s mother to the witness stand during a pretrial hearing in an effort to show that Consumer Cause was a mere front for Mehrban’s legal practice. Efraim speaks only Farsi and testified through an interpreter. Asked the name of the consumer group, she replied: ‘Help the customers.’ Efraim said she did not know whether it had any other officers.”
However, the Times reports that Mehrban has also represented clients whose independent existence will be familiar to some of our readers, including the National Coalition of Free Men (on whose behalf he filed suit recently against Los Angeles County, saying it was being discriminatory by maintaining a commission on women’s issues but not one for men’s) and the National Council Against Health Fraud (on whose behalf Mehrban went to court over the effectiveness of homeopathic remedies; numerous favorable mentions of Mehrban turn up on QuackWatch and he is listed on QuackWatch’s Legal Advisory Board). According to the Times, Mehrban is currently in court suing dentists on the claim “that the mercury in silver fillings could cause birth defects and diseases”. We wonder how that sits with his friends over at the NCAHF, which recently voiced agreement with the view of the American Dental Association that a different lawyer’s West Coast suit against mercury fillings constitutes “an egregious abuse of the legal system.” (see Jul. 16). (Monte Morin, Los Angeles Times, Oct. 26). For more on Prop 65 litigation, see Daniel Blackburn, “The be-all, catch-all”, San Luis Obispo New Times, Mar. 7. (DURABLE LINK)
November 4-5 — Self-defense, of course. Former policeman Eddie Myers fired 36 shots at Emma Horton from three different guns, hitting her 14 times. Last month a jury acquitted Myers on grounds of — what else? — self-defense. “This is a runaway jury and crazy verdict,” said Holmes County District Attorney James Powell III. Defense attorney Chokwe Lumumba disagreed, saying Myers was reasonably in fear of his life: Horton, who was an assistant police chief and Myers’s sister-in-law, was armed and Myers said she had reached for her gun. When found, “Horton was armed, but her gun was found strapped in its holster on her body.” (Jimmie E. Gates, “Ex-cop offers apology to family”, Jackson Clarion-Ledger, Oct. 23). (DURABLE LINK)
November 4-5 — You breached my privacy, says serial killer. Australia: “Serial killer Ivan Milat could receive up to $40,000 in compensation over alleged breaches of [New South Wales] privacy laws, State Parliament heard yesterday. Milat has lodged a complaint with the NSW Privacy Commission over the public release of x-rays taken last year when he swallowed three razor blades, 24 blade staples and a nail-clipper chain. Milat claimed he did this in protest at his solitary confinement but prison authorities believe the killer was hoping for a transfer to a medical facility from which to escape…. Milat, who is serving seven life sentences for the murder of seven backpackers between September 1992 and November 1993, stood to gain up to $40,000 in compensation if his complaint was upheld, he said. … ‘Milat believes as a result of those x-rays becoming public, that his personal rights have been impinged,’ [Corrective Services Minister Richard Amery] told Parliament.” (Linda Silmalis, “Milat’s compo bid could pay $40,000″, Sydney Morning Herald, Oct. 30). (DURABLE LINK)
November 4-5 — “Resounding victory” for Microsoft. Last Friday’s ruling was a rebuke to activist state attorneys general and others who’d wanted to pursue the technology company to the bitter end. “U.S. District Judge Colleen Kollar-Kotelly embraced, with minor changes, the settlement struck last winter aimed at addressing Microsoft’s violations of antitrust laws. …And she all but ridiculed the states for the legal theories they put forth to justify tougher restrictions on the Redmond, Wash., company.” (Jonathan Krim, “Judge Accepts Settlement in Microsoft Case”, Washington Post, Nov. 2; Dennis J. Opatrny, “Reaction Mixed on Microsoft Decision”, The Recorder, Nov. 4). (DURABLE LINK)
November 1-3 — WHO demands pretzel de-salting by law. “Far from just encouraging people to leave aside the salt pot to prevent high blood pressure, governments should resort to legislation to cut the amount of salt in processed foods, the World Health Organisation (WHO) said Wednesday.” The transnational agency for years has been pushing governments to restrict tobacco, which seems to have whetted its activist spirit. (“East Less Salt — By Law, Says WHO”, AFP/Discovery Health Channel, Oct. 30). In Australia, “Take-away [take-out] chains may face pressure to end cheap deals on super-sized meals under a radical plan to be proposed to the Federal Government to combat obesity. Commercial television networks could also face new restrictions on screening fast-food and confectionery advertisements, especially to children.” (Fia Cumming, “New laws target fast food”, Sydney Morning Herald, Oct. 13). See also Andrew Ferguson, “Tobacco Lesson for McDonald’s in Fat War”, Bloomberg.com, Sept. 10 (interview with John Banzhaf); Iain Murray, “Slaughtering the Fatted Calf”, TechCentralStation, Aug. 19. (DURABLE LINK)
November 1-3 — Mudslinging in Ohio high court races. Trial lawyers and labor unions have been funding attack ads against two Republican candidates for the Ohio Supreme Court, incumbent Justice Evelyn Stratton and Lt. Gov. Maureen O’Connor, in a campaign so ugly that it has drawn a formal condemnation from the Ohio State Bar Association. “The ad, produced by the Citizens for an Independent Court political action committee, depicts laughing businessmen in suits inside a limousine, as a narrator states Justice Stratton and Ms. O’Connor are on ‘their side.'” (Jim Provance, “State bar assails ad in Ohio court race”, Toledo Blade, Oct. 22; Emily Heller, “Attack ads, big money set tone again this year”, National Law Journal, Oct. 28). Ohio GOP chairman Bob Bennett identifies an element of hypocrisy: “The same trial lawyers who funded this ad were outraged only two years ago when similar tactics were used against Justice [Alice Robie] Resnick,” one of their own favorites. (Liz Sidoti, “Group’s ad links GOP Supreme Court candidates to big business”, AP/Akron Beacon Journal, Oct. 16)(see Oct. 30, 2000). On judicial races in other states, see “Courting the Vote”, National Law Journal, Nov. 1 (fewer big fights between trial lawyers and their opponents than two years ago, Mississippi and Ohio aside). (DURABLE LINK)
November 1-3 — “Mom who drugged kids’ ice cream sues”. “A Phoenix mother who admitted lacing her daughters’ ice cream with prescription tranquilizers is suing a health care provider and others, saying they are responsible for her drug-induced delirium at the time. Jodi Lynn Henry, 38, who was acquitted in July of attempted murder charges, filed a medical malpractice claim in Maricopa County Superior Court against Jewish Family Services, a nurse practitioner and ValueOptions, a mental-health care provider.” (Carol Sowers, Arizona Republic, Oct. 30). (DURABLE LINK)
November 11-December 12 — Month-long hiatus/editor’s forthcoming book. Overlawyered.com will be on hiatus for about a month to allow our editor to attend to some personal business that requires his full attention. There are a lot of great items in our pipeline, but they’ll have to wait. We’ll probably have some access to email, though.
In the mean time, we’re very happy to announce that our editor’s third, newest book, The Rule of Lawyers: How the New Litigation Elite Threatens America’s Rule of Law, is not only completed but at the printers (St. Martin’s Press) It’s due out in January, just in time for what is widely expected to shape up as a big debate over civil justice reform in the new (and relatively reform-friendly) U.S. Congress. Its subject is the rise of mass litigation, from asbestos and silicone breast implants to the tobacco and gun crusades. It’s got chapters on how the litigation industry successfully manipulates juries, the political process and the press, and it concludes with what we think are some new reform ideas. Although many of the book’s themes will be familiar to our readers, most of the material in the book has never appeared on this site.
Okay, here’s the sales pitch: even though the book won’t appear in stores for a few more weeks, you can pre-order it now at (as of this writing) a handsome 30% discount. Placing a pre-order not only gets you a copy of the book in extra-timely fashion, but also helps stir up interest, alerting the publisher and the wider bookselling community to the presence of reader demand. If you buy through our online Amazon bookstore, a portion of your purchase price will also go to support the work of Overlawyered.com. Editors interested in excerpting chapters or assigning the book for review, incidentally, should contact St. Martin’s Press directly at (212) 674-5151 and ask for Joe Rinaldi of the Promotion Department. The book also has its own fledgling website.
How timely is our subject? In her new book The Case Against Lawyers (see our Oct. 3 commentary), TV host Catherine Crier not only pulls together countless funny/outrageous case stories from the legal system, but concludes with a ringing call for reforms that include loser-pays and restrictions on lawyers’ contingency fees. Crier generously credits this site and its editor as a major source of material, observing in an “Author’s Note”: “The Internet is a truly extraordinary tool. One particular site has proved absolutely invaluable (and infuriating): Walter Olson’s overlawyered.com is the definitive source for daily updates on the struggle against legal insanity.” We’re delighted to see that The Case Against Lawyers has just made this week’s New York Times best-seller list, and we encourage you to buy it as well as buying The Rule of Lawyers.
Finally, this would make a good time to join our mailing list, since we’ll be sending out an email to list members alerting them when the site resumes regular posting in mid-December. List members receive updates, typically every couple of weeks, which contain snappy summaries of what’s new on the site.
See you sometime in mid-December, by which time we hope our personal business will have been brought to a happy conclusion. Fly swiftly round, ye wheels of time, and bring the promised day!
P.S. Our readers are great. The Amazon sales ranking for The Rule of Lawyers started at #1,483,699 at 7 a.m. on Nov. 11, when the above was posted. By 11:30 a.m. it had climbed to #2,356 and by 9 p.m. to #979. (DURABLE LINK)
November 11-12 —Oops. In our Oct. 30-31 item on traffic counts for this site, our unfamiliarity with our new statistics program led us to overcount pages served by about 20 percent. See update to earlier post. Sorry! (DURABLE LINK)
September 20 — Victory in Chicago. A judge last week threw out the city of Chicago’s lawsuit against the gun industry. “In granting the industry’s motion to dismiss, Judge Stephen A. Schiller of Cook County Circuit Court suggested that the city had not shown wrongdoing by the individual defendants. He said that the city’s arguments would be better handled in a legislature than in a courtroom.” However, a West Coast judge denied a defense motion to dismiss a group of cases filed by San Francisco, Oakland, Los Angeles city and county, and other plaintiffs. Pending appeal, judges have now dismissed the suits filed by Chicago, Cincinnati, Bridgeport, and Miami, while declining to dismiss suits filed by Detroit, Atlanta, Boston, New Orleans, Cleveland, and the California cities. (Pam Belluck, “Chicago Gun Suit Fails, but California’s Proceeds”, New York Times, Sept. 16 (reg); “Judge dismisses Chicago suit against gun industry”, Reuters/CNN, Sept. 15; reaction from Illinois State Rifle Association). Plus: John Derbyshire gets radicalized on the tort reform issue when he goes out trying to buy ammunition on Long Island, and discovers that the courtroom assault on the industry is choking the local firearms dealers into oblivion with no legislation needed, simply by causing their liability insurance to dry up. (“First thing we do…”, National Review Online, Sept. 12).
September 20 — Disbarred, with an asterisk. Most clients probably assume that a lawyer thrown out of the profession is gone for good, but the Boston Globe finds that for years bar authorities have been quietly readmitting practitioners, including some whose original offenses were grave. Some of this leniency has been misplaced, since a number of the readmitted lawyers have gone on to commit new offenses against clients. (David Armstrong, “Special Report: Disbarred Mass. lawyers skirt discipline system”, Sept. 17, and sidebars: “Reinstatement process favors lawyers“, “Victims often missing from equation“.
September 20 — “Regulating Privacy: At What Cost?” Free-marketeers finally start organizing to resist the steamroller movement toward online-privacy laws, reports Declan McCullagh. Among new initiatives are a symposium held yesterday on Capitol Hill by George Mason U.’s Mercatus Center, a book entitled The Future of Financial Privacy forthcoming from the Competitive Enterprise Institute, and a privacy-issues website called Privacilla.org. (Wired.com, Sept. 19). And Reason Express a while back alerted us to a website by Jacob Palme in Sweden which recounts some of the less pleasant consequences of that nation’s pioneering (1973) law preventing the electronic gathering or dissemination of information about individuals without their consent. Palme says the law mostly went unenforced as regards web publishing, which is a good thing since if enforced literally it could have rendered unlawful much of the web in Sweden. The few instances that led to enforcement action, as related by Palme, suggest that unpopular and dissident opinions were among the most likely to draw complaints under the law. One man put up a webpage critical of a large Swedish bank, naming individual directors whom he believed had behaved in ethically irresponsible ways; he was prosecuted and fined for violating their privacy. In another case, an animal rights group was subject to legal action for posting a list of fur producers. In a third, a church volunteer was prosecuted for stating on a web page that one named church member had broken a leg and another was a member of the Social Democratic Party; health status and political affiliations are considered especially sensitive under the law. In a fourth case, dissident dog lovers got in privacy-law trouble for criticizing leading members of a dog society by name. The privacy laws were revised in 1998 and again in 1999, following much criticism, and as of June 2000, when Palme’s page was last revised, the highest Swedish court had not yet given its interpretation of the law (“Freedom of Speech, The EU Data Protection Directive and the Swedish Personal Data Act“; “The Swedish Personal Register Law“; “Swedish Attempts to Regulate the Internet“; official Data Inspection Board). (DURABLE LINK)
September 19 — Hollywood under fire: nose of the Camel? In what may take the prize for worst idea of the month, South Carolina Attorney General Charles Condon has proposed filing coordinated state lawsuits to make Hollywood the next tobacco. “Clearly we have here a virtual replay of what the tobacco industry did to our children. Instead of Joe Camel, Hollywood uses Eminem, South Park, Doom and Steven Segal [sic] to seduce children,” Condon wrote in a letter to the National Association of Attorneys General (Condon press release, Sept. 13; David Shuster, “South Carolina AG Threatens Suit Against Entertainment Industry”, Fox News, Sept. 15). It’s time the entertainment business cleaned up its act, writes Clarence Page of the Chicago Tribune, but that doesn’t mean Sens. McCain and Lieberman are right to “justify [an] end run around the 1st Amendment with a public-health argument like that which justifies the regulation of tobacco or liquor.” (“A World Apart: Eminem and Me”, Sept. 17). Owens Corning and Met Life use cartoon characters (the Pink Panther and Snoopy respectively) as advertising mascots, and you might jump to the conclusion that they were committing that dire sin, “marketing to children”, if you didn’t know that fiberglass insulation and insurance are products bought by adults, observes Illinois law prof Ronald Rotunda (“The FTC Report on Hollywood Entertainment“, Federalist Society, Free Speech and Election Law Working Group; FTC report; “Lieberman: Entertainment must police itself”, AP/Miami Herald, Sept. 13). Filmmaker John Waters doesn’t think much of the crusade: “The future CEOs of America are all sneaking into R-rated movies” (Rick Lyman, “Writers, Directors Fear Censorship, Tell Anger Over Violence Hearings”, New York Times Service/Chicago Tribune, Sept. 18). And plaintiff’s lawyers suing entertainment companies over school shootings, who’ve already gotten plenty of favorable ink in the conservative press (see July 22, 1999), are hoping the new report will invigorate their legal cause (Frank Murray, “FTC adds ammo to lawsuits for deaths”, Washington Times, Sept. 13).
September 19 —WSJ‘s Bartley on decline of American law. The establishment of the rule of law, replacing the whim of powerful rulers, was perhaps the supreme achievement of the West in the millennium just past, but the United States has grown careless about its legal inheritance, with systematic injustices mounting in both criminal and civil courtrooms. Last week’s call-sheet scandal illustrates the way “audacious and powerful interests” who have found ways to use the legal system to make their fortunes “have allied themselves with government and politicians.” (Robert Bartley, “The Law and Civilization’s Future”, Opinion Journal (Wall Street Journal), Sept. 18). “Justice Department investigators and prosecutors want to know if there were, in fact, any quid pro quos for the trial lawyers’ extraordinary generosity,” editorializes the San Diego Union-Tribune about the scandal. “With trial lawyers contributing almost 10 percent of all funds raised by the Gore-Lieberman campaign, that remains an urgent question. Voters have a right to some answers before Nov. 7.” (“Veto for sale?”, Sept. 16).
September 19 — Punitive damages for hatemongering? Washington Post‘s editorial page “is gutsy enough to have qualms about Morris Dees’ strategy of bankrupting hate groups with punitive tort damages,” observes Mickey Kaus at Kausfiles (“The Aryan Nations Verdict” (editorial), Washington Post, Sept. 16). “Many advocacy groups that engage in direct actions potentially expose themselves to tort liability…. That danger is compounded by the abusive system of punitive damages, which gives juries wide discretion to ruin people or companies financially in a fashion untethered to the scope of the harm they have done in the specific case at issue,” the Post comments. “That could not have happened to a more deserving bunch than Mr. [Richard] Butler and the Aryan Nations. But it’s worth pausing for a moment to wonder who’s next.”
September 18 — Scruggs v. Ritalin. Latest target for zillionaire tobacco lawyer and recent Time profilee Richard Scruggs: Novartis Pharmaceutical Corp., makers of the drug Ritalin, and the American Psychiatric Association. Scruggs’s firm accuses the two of conspiring to promote an overly broad diagnosis of Attention Deficit/Hyperactivity Disorder (ADHD), with the result that the drug is given to too many youngsters. “Novartis and the APA deny the allegations. In a statement, Novartis says the charges are ‘unfounded and preposterous.'” Some lawyers from the Castano consortium, which pursued tobacco litigation separate from Scruggs’s, are also joining him in the action. (“Lawsuits Accuse Ritalin Makers, APA”, AP/Yahoo, Sept. 15; Excite/Dow Jones; Toni Locy, “Fight over Ritalin is heading to court”, USA Today, Sept. 15) (see also Sept. 22-24 and April 13, 2001).
September 18 — White House pastry chef harassment suit. White House assistant pastry chef Franette McCulloch, 53, is suing her boss Roland Mesnier, claiming he “became hostile and rude when she spurned his advances, ‘screaming’ at her for refusing to have sex, excluding her from designing desserts and once assigning her to peel eight crates of kiwi.” Her suit also alleges that Bill Clinton, as the head of the White House, failed to establish a proper method for employees to bring harassment complaints, and demands $1 million each from Mesnier and Clinton. (AP/CNN, Sept. 13; Ellen Nakashima, “White House Chef Accuses Boss of Sexual Harassment”, Washington Post, Sept. 14). In 1997, the Equal Employment Opportunity Commission ruled against a discriminatory-firing claim by an employee of the White House chef’s office, but said he had been improperly retaliated against for filing his complaint. A former executive chef testified in a sworn deposition that year that the Clintons had paid him $37,000 to quit his post “because of my accent and the fact that I’m overweight.” (more).
September 18 — The teetery inkbottle. “Whenever the law and the facts were against him, Mr. Homans was not one to pound on the table. Instead, he would resort to what he called his ‘trial pen’, a big, old-fashioned device that he would pull out at a critical moment in a trial. On the stand would be the state’s star witness testifying that he had seen with his own eyes as Mr. Homans’s client pulled out a gun and pointed it directly at the bank teller’s head. But the jurors’ eyes would be on Mr. Homans, who, with trembling hand, would be filling the pen from a bottle of India ink perched so precariously, half over the edge of the defense table, that the jury would be caught up in the suspense of when it would fall.” — from an obituary, “William Homans, 75, Dies; Boston Civil Rights Lawyer”, by the late Robert McG. Thomas, Jr., New York Times, February 13, 1997 (fee-based archives, search on “William Homans”).
September 18 — That’ll be $2 trillion, please. A former resident has filed three lawsuits against the town of Rocky River, Ohio, “claiming everything from false arrest to injury of reputation,” and demanding $2 trillion. The town isn’t amused and is countersuing her, saying it’s had to expend money to defend itself. (Sarah Treffinger, “Rocky River sues woman who sued for trillions”, Cleveland Plain Dealer, Sept. 13).
September 15-17 — Day Two of Vetogate. George W. Bush in a California speech says the new call-sheet revelations are evidence that Gore “may have crossed a serious line … The appearance is really disturbing”, Janet Reno refuses to talk about the status of the investigation, the New York Times Washington bureau frets about being (just barely) webscooped by Time.com on the story, and Gore campaign spokesman Chris Lehane curiously describes the sensational disclosures as “recycled”, though no one in the press remembers seeing them before now (CNN; Drudge special; Yahoo/Reuters; Wash. Times).
September 15-17 — Who caught the tire problem? “Who provided the information that instigated the current recall? Who acted to protect the consumer? None other than ‘greedy’, profit-seeking State Farm Insurance Company. Eager to earn ever higher profits by reducing injury claims and lawsuits, State Farm’s statistical bureau noticed an increase in claims related to Firestone tires and passed the information along to the NHTSA which had been asleep at the switch. [See Devon Spurgeon, “State Farm researcher’s sleuthing helped prompt Firestone recall’, Wall Street Journal , Sept. 1]. The profit seeking of a big, bad, private insurance company may help save hundreds of lives.” (James Ostrowski, “The Tire Fiasco”, Ludwig von Mises Institute, Sept. 8).
In the New York Times Sept. 11, Keith Bradsher reports that by the end of 1998 trial lawyers “had already sued Firestone, and sometimes Ford as well, in cases involving 22 deaths and 69 serious injuries”. However, few of these cases had come to the attention of the National Highway Traffic Safety Administration; until recently NHTSA had received very few complaints, and none of fatalities. In fact, Bradsher reports, trial lawyers were pursuing a conscious policy of not reporting tire incidents to the agency, apparently because of tactical concerns — if the agency learned about such cases too early and in too small a number, it might do a perfunctory investigation and miss the pattern of defectiveness, and then the lawyers would have more trouble winning their cases. This strikes us as a fairly damning indictment to be leveling against the trial lawyers — they flout the public interest in learning crucial safety information, just in order to angle for monetary advantage? Isn’t that what Firestone is accused of doing? — but Bradsher quotes Ralph Hoar, a well-known plaintiff’s-side consultant in auto-design cases who provided the numerical tabulation cited at the beginning of this paragraph, as cheerily portraying the lawyers as just doin’ their job, saying they have to concern themselves with their clients’ best interests, not anyone else’s.
Meanwhile, Ford Motor had been named in a few suits but “paid little attention, because automakers routinely face thousands of lawsuits after crashes.” In other words, the background level of litigation against a company of that size is so high that it’s hard to notice patterns that do turn out to be meaningful (Keith Bradsher, “Documents Portray Tire Debacle as a Story of Lost Opportunities”, New York Times, Sept. 11 (reg)). (DURABLE LINK)
September 15-17 — Ciresi bested in Senate bid. Michael Ciresi, the trial lawyer who sought to parlay his representation of the state of Minnesota in the tobacco litigation into a seat in the U.S. Senate, has lost the Democratic nomination to department store heir Mark Dayton by a margin of 41 to 23 percent, with other candidates dividing the rest. (Dan Bernard, “Dayton Grabs DFL Nomination”, WCCO/Channel 4000, Sept. 13; St. Paul Pioneer Press; Minneapolis Star-Tribune).
September 15-17 — Cash return sought by murder-for-hire convict. “A criminal defense attorney who paid an undercover agent $11,000 in a failed murder-for-hire plot is asking the government to return the money. Frederick Ford, 48, who is serving an eight-year prison term for planning to kill two former clients he thought could implicate him in a kidnap plot, is seeking the return of the money he admitted he gave to a U.S. Department of Labor agent last year.” (“Convicted attorney seeks return of murder-for-hire retainer”, AP/CNN, Sept. 13; Shelley Murphy, “Hit man hirer wants money back”, Boston Globe, Sept. 13).
September 14 — “I know [you] will give $100K when the president vetoes tort reform, but we really need it now.” The New York Times reports in today’s editions that Justice Department campaign finance investigators have launched a preliminary probe into documents that have surfaced from the Clinton/Gore 1996 fundraising operation, including a “call sheet” prepared for Vice President Gore regarding Beaumont, Texas lawyer Walter Umphrey, a major Democratic benefactor who shared in Texas’s $3.3 billion tobacco contingency fee and is well known to readers of this space. The sheet describes Umphrey as “closely following tort reform” and suggests asking him for $100,000 to finance Democratic Party TV commercials. The White House claims that Gore did not make the call, but two weeks later a staffer for then-Democratic National Committee chairman Donald Fowler prepared a call sheet reading as follows: “Sorry you missed the vice president. I know [sic] will give $100K whn [sic] the president vetos [sic] tort reform, but we really need it now. Please send ASAP if possible.” DNC officials propose that the “missed” might have referred to the two men not connecting at an in-person event; Fowler disclaims any memory of talking with Umphrey about campaign donations and says he would never have used the language on the call sheet. According to the Times, “Trevor Potter, a former chairman of the Federal Election Commission, called the call sheet’s language ‘extraordinarily ill-advised,’ saying prosecutors would probably be investigating whether the solicitation violated either a bribery statute or a law prohibiting ‘illegal gratuities,’ a ‘gift’ given after an elected official takes a public action.”
The Washington Post reports that Umphrey says he doesn’t recall “any of that” and otherwise declines comment, while Payne was talking to the Times only through her lawyer. And attorney Michael Tigar, who represents Umphrey and the rest of the Big Five Texas tobacco lawyers, issued this small gem of legalistically worded denial: “Tying campaign contributions to legislative or executive action has never been illegal in the United States unless there is proof that the public official extorts the money by threatening to give or withhold action based on the contributions,” he said; moreover, his clients, including Mr. Umphrey, “have repeatedly been asked in many forums whether they have ever given money to a candidate or officials as a quid-pro-quo for official action, and they have repeatedly said under oath that they have never done so.” The Times account adds considerable background on the epic pace of Clinton/Gore fundraising among Texas plaintiff’s lawyers of late, including a little-reported fundraiser thrown for Hillary Rodham Clinton’s Senate campaign by Big Five stalwart John Eddie Williams of Houston. (Don Van Natta Jr. with Richard A. Oppel Jr., “Memo Linking Political Donation and Veto Spurs Federal Inquiry”, New York Times, Sept. 14 (reg); Susan Schmidt, “1995 Documents Appear To Link Lawyer’s Contribution To Veto”, Washington Post, Sept. 14; more on Umphrey and the Big Five: Sept. 1, May 22; more on trial lawyers’ political clout). More breaking coverage (via Drudge): Time, Fox News, AP. (DURABLE LINK)
September 13-14 — “Violent media is good for kids”. Good kids, as well as bad ones, are naturally fascinated with violence, catastrophe and retribution, and letting them explore these matters in the relatively safe territory of the printed page and popular entertainment is part of the process by which they learn how to fit themselves into a frightening world, argues cartoonist Gerard Jones, in an excerpt from a book due out next year from Basic with co-author Melanie Moore (“Reality Check”, Mother Jones, June 28; Reason magazine, “The Kids Are All Right“, “Breaking Issues”; Christopher Stern, “Violent Material Marketed To Youth”, Washington Post, Aug. 27; Mike Allen and Ellen Nakashima, “Clinton, Gore Hit Hollywood Marketing”, Washington Post, Sept. 12).
September 13-14 — Gregoire’s home front. Washington state attorney general Christine Gregoire gained a high national profile jetting around the country to take a leading role in the tobacco-Medicaid affair and other big-case AG litigation, and followed up by assuming the presidency of the National Association of Attorneys General (see July 17). Now it may be time to wonder whether she was keeping enough of an eye back home on the unglamorous routine of the AG’s office, which plays a vital role in protecting the state’s legal interests. In March a Pierce County jury awarded the largest verdict ever against the state, $17.8 million, on behalf of three developmentally disabled men whose families said they were abused in a state-supported home. Gregoire’s office announced plans to appeal but, embarrassingly, proceeded to lose the state’s right to do so by missing a filing deadline. With interest, the total bill has now mounted to $18.7 million. (Eric Nalder and Mike Carter, “State won’t give up bid to appeal $17.8 million verdict”, Seattle Times, Sept. 12; Eric Nalder, “No excuse for missed appeal, court says”, Seattle Times, Aug. 22; see also update Nov. 30). The Capital Research Center has issued a new report critical of recent attorney general activism, by Ron Nehring of Americans for Tax Reform (“National Association of Attorneys General: Opening the Door to a New Era of Regulation Through Litigation”, Organization Trends (CRC), Sept.)
September 13-14 — Prescription: 24-7 monitoring. Adding to Evergreen State taxpayers’ legal woes, a Pierce County, Wash. jury Sept. 1 ordered the state government to pay $22 million to survivors of a driver killed in an auto accident by a man who was at the time serving the community-supervision portion of a sentence for third-degree assault. The verdict broke an earlier $17.8 million record for lawsuits against the state, set in March by the same plaintiff’s attorney, Jack Connelly (see above item). Gov. Gary Locke vowed to appeal the verdict, saying if upheld it could make the entire enterprise of community supervision unworkable. “This man was convicted of … third-degree assault connected with a domestic dispute,” he said. “Imposing liability for his involvement in an auto accident extends public liability too far.” A Locke aide questioned whether the state could monitor the 55,000 persons on community supervision adequately to prevent any of them from being a menace on the highway. One of the alternatives to risking failure-to-supervise liability — keeping the 55,000 locked up — would apparently be okay with lawyer Connelly, who said, “If you’re not even going to try to do your job, then don’t put these guys on community supervision. Put them in jail.” (Eli Sanders, “Family awarded $22.4 million in wrongful death lawsuit against state”, Seattle Times, Sept. 2). See also Chris Solomon, “Cities leery of new probation rules”, Seattle Times, July 11 (local governments fear being financially wiped out by Washington Supreme Court ruling allowing negligence lawsuits against municipalities over crimes committed by probationers).
September 13-14 — More bank spying? Despite strongly negative public reaction to withdrawn “Know Your Customer” regulations that would have accelerated banks’ sharing of customer “profiles” with law enforcement, legislators like Rep. James Leach (R-Iowa) are back with proposals that raise similar civil liberties concerns (Scott C. Rayder, “The Counter-Money Laundering Act: An Attack on Privacy and Civil Liberties”, Heritage Foundation Executive Memorandum, Aug. 31; our take on the last round).
September 13-14 — Judges’ words, copyrighted. Officials in the California judiciary would like to revamp the instructions that judges give juries before trial deliberations, in hopes of making them clearer and more understandable, but have run into an unexpected problem. The Los Angeles County courts turn out to hold copyright in the most widely used current instructions and collect royalties when other California courts use them, which have generated $2.5 million for the county’s use over the past decade. “‘When we first began this effort three years ago, all of us just assumed that we would take [Los Angeles instructions] and improve on them,’ said Associate Justice James D. Ward of the state Court of Appeal in Riverside, vice chairman of the task force. ‘Then they announced to us that they owned them.'” The L.A. courts have held back from cooperating in the statewide revision efforts, which if successful would result in a set of instructions that courts could use for free. (Caitlin Liu, “Say What, Your Honor?”, Los Angeles Times, Sept. 7).
September 12 — Goodbye to gaming volunteers? Online multiplayer gaming has grown to be a big Internet institution in no small part because large numbers of unpaid enthusiasts join in on a volunteer basis to suggest and beta-test new features, run discussion boards and perform countless other services. “But maybe not for long. On Monday, August 28 … Origin Systems Inc. (OSI) [makers of Ultima Online, one of the leading fantasy role-playing games], announced the termination of free game account privileges for hundreds of community volunteers…. While company representatives have not said so outright, it appears the move to eliminate what amounted to a $10 a month gratuity for volunteers is related to a recent New York class action lawsuit, brought by former volunteers at America Online (AOL)” (see Sept. 7, 1999). The class action lawyers in that case are charging that because AOL benefits from the content devised by its volunteers, and has given them at least nominal compensation in the form of free services and the like, it is therefore obliged to keep track of how much time they put into volunteering and pay them at least the minimum wage. If the lawyers succeed in their efforts, online community providers could find themselves facing large retroactive wage bills. “Origin is just the first game company to move to protect itself legally by removing any perks that could be seen as differentiating its volunteers from all the other players. The major subscription-based role-playing services may soon follow suit. While the short-term effects may be limited (some volunteers may quit, but could be replaced), the long-term future of volunteer work on online releases seems doubtful all of a sudden.” (Bruce Rolston, “The End of the Smurfs?”, Adrenaline Vault, Sept. 1).
September 12 — Curious feature of lawyer’s retainer. Texas trial lawyers are in a flutter over a Waco case in which an appeals court ruled that a client family in an industrial accident case was within its rights to withdraw from a contingent-fee legal contract it had signed. The agreement the lawyer had gotten the family to sign included a curious feature: a provision entitling him to settle the case without their consent. Such a provision, the court ruled, “clearly violates” the Texas professional code for lawyers, making the entire contract voidable. The lawyer, J.W. Stringer, plans motions for rehearing and appeal. (Jenny Burg, “Opinion Has Lawyers Reviewing Contingent-Fee Contracts”, Texas Lawyer, Aug. 21).
September 12 — This little piggy got taken to court. More pig farmers are facing legal action as outlying towns change “from rural, mind-your- own-business farm communities to residential, what’s-that-smell, suburban neighborhoods,” according to a Cleveland Plain Dealer report. Five residents of Medina County, Ohio, including a truck driver and two auto mechanics, have been sent to jail this summer for refusing to clean up pig living arrangements on their properties (Stephen Hudak, “Proud Pig Man’s smelly pork farm lands him in poke”, Sept. 7) (via Romenesko’s Obscure Store) And a Marlin County, Florida pig farmer sued by an adjoining golf course has put up a website which solicits moral support and legal defense contributions, as well as purchases of the squiggle-tailed offenders (Pigfarmer.com) (more on pig litigation: Oct. 4, 1999).
September 11 — “Feeding Frenzy Over Firestone”. “Lawyers all over the country see opportunity in the escalating legal, commercial and public relations disaster for Ford and Firestone.” (Bob Van Voris and Matt Fleischer, National Law Journal, Sept. 5; Yahoo Full Coverage).
September 11 — Harassment law roundup. At an Alcoa plant in North Carolina, one of the black complainants in a race discrimination suit went out to the parking lot, made a list of all the workers’ vehicles with Confederate flag stickers on them, and filed this as evidence of “hostile racial environment” in the case. The company promptly banned employees from having such stickers on their cars, a ban it insists had absolutely nothing to do with the lawsuit (Steve Chapman, “Trouble in Mind: Is the First Amendment Void in the Workplace?” Chicago Tribune, Aug. 24). In an excerpt from his book The Unwanted Gaze: The Destruction of Privacy in America, New Republic legal correspondent Jeff Rosen urges courts to reconsider the “hostile environment” analysis that has become an accepted part of harassment law: “A jurisprudence originally designed to protect privacy and dignity is inadvertently invading privacy and dignity” (“Fall of Private Man”,New Republic, June 12; more on book). Clarence Thomas, alone among the nine Justices of the Supreme Court, wanted to tackle the “troubling First Amendment issues” raised by a court’s injunction against workers’ use of racial epithets on the job at an Avis Rent-a-Car franchise; a California court had ordered the drawing up of a list of words that employees were to be forbidden to use in conversation with each other, whether anyone present found the words objectionable or not (Tony Mauro, Freedom Forum, May 23). And early this year it was reported that an “affirmative action officer in Falmouth, Massachusetts — whose job it was to enforce the town’s sexual harassment policy — has been fired for sexually harassing a town employee. The official, Jayme Dias, was in charge of promoting and enforcing fairness in hiring and employment practices.” (Monster.com, “Week in Work”, Jan. 31).
September 11 — “Mother sues over lack of ice time for goalie son”. In Rimouski, Quebec, “Hélène Canuel is seeking $1,000 in damages from the Rimouski Minor Hockey Association because her son, David, was denied the right to play in a critical game during a hockey tournament last December.” David is 14 years old. (Arpon Basu, Montreal Gazette/National Post, Aug. 24).
July 10 — Tobacco: why stop at net worth? Trial judge Robert Kaye, presiding over the Engle tobacco class action in Miami (see July 8, 1999, Sept. 28, June 2, our WSJ take July 1999), has declared that in calculating a basis for punitive damages there’s no reason jurors should feel obliged to stop at a sum representing the tobacco companies’ net worth. “There’s much more to this case than net worth or stockholder equity,” he said. Earlier, Judge Kaye ruled that it was proper to place before the jury the companies’ capacity to borrow funds to help meet a punitive damage award, and also agreed to let the jury consider companies’ operations worldwide in assessing those damages, though foreign countries might wonder why the hypothesized victimization of smokers worldwide should result in a punitive payoff exclusively to (certain) Floridians, and though overseas court systems are generally far more averse than ours to the award of punitive damages. Moreover, Judge Kaye “barred the defendants from arguing to the jury that they have already been punished enough by their earlier settlements with states valued at $246 billion” even though those settlements took place in the shadow of demands for punitive damages. (Imagine copping to a plea bargain in one court over your past doings, and then finding you get no double jeopardy protection when hauled up for punishment by a second court — after all, your plea bargain was “consensual”, so how can it count as punishment? But American courts are in fact permitted to assess punitive damages against civil defendants an unlimited number of times to chastise them for a single course of conduct, so it’s not as if any due process is owed or anything.)
Plaintiffs offered an expert witness, Prof. George Mundstock of Univ. of Miami School of Law, who testified that the nation’s five biggest cigarette makers “are worth $157 billion domestically and have a ‘strikingly rosy’ future”, per AP, which appears to make hash of suggestions that lawyers’ efforts previous to this point have made a vital difference in putting us on the road to a “smoke-free society”. Mundstock’s methodology reportedly reduced to a present value stream the surplus of all future tobacco company income over expenses. Even the Wall Street Journal‘s Milo Geyelin, not a reporter suspected of pro-business leanings, writes that Kaye’s handling of the legal issues in the suit has been “unorthodox”. At the New York Times, meanwhile, reporter Rick Bragg last month interviewed several of the dozen or more smoking-ravaged spectators who throughout the trial have taken highly visible seats in the courtroom day after day where the jury can hear and see their labored breathing, oxygen tanks, and mechanical voice boxes. While extracting considerable human-interest content from these interviewees, Bragg’s story does not display the least curiosity as to whether the idea of attending just happened to occur to all of them spontaneously, or instead, as defendants have hinted, was the result of an orchestrated effort by plaintiff’s attorneys Stanley and Susan Rosenblatt, which might have been ruled out of bounds as manipulative and prejudicial by a jurist less agreeable to the plaintiffs’ cause than Judge Kaye.
SOURCES: Milo Geyelin, “Judge Won’t Allow Tobacco Industry To Cite Settlements”, Wall Street Journal, May 18; “Jury can hear about tobacco industry’s borrowing power, judge rules”, FindLaw, May 31, no longer online; “Economist estimates tobacco industry worth $157 billion”, AP/FindLaw, June 6, no longer online; Gordon Fairclough, “Judge in Smoking-Illness Suit Tells Jury Not to View Settlements as Punishment”, Wall Street Journal, June 14; “Judge KO’s Tobacco Try on Damages”, AP/FindLaw, July 6; Milo Geyelin, “Judge Reverses, Lets Jury Weigh Foreign Tobacco Sales”, Wall Street Journal, June 7; Rick Bragg, “Where Smoking Damages Are Argued, Plaintiffs Fight for Air”, New York Times, June 3.
July 10 — “Why You Can’t Trust Letters of Recommendation”. Fear of lawsuits isn’t the only factor inhibiting candid letter-writing in higher education, but it’s an important one, especially since a recent decision by the Virginia Supreme Court stripped professors of immunity for allegedly defamatory reference-giving in the tenure process. Open-records laws add to the difficulties, as in the University of California system, where job candidates enjoy a big head start in figuring out who’s saying what about them (Alison Schneider, “Why You Can’t Trust Letters of Recommendation”, Chronicle of Higher Education, June 30) (via Arts & Letters Daily).
July 10 — Wonder Bread hierarchy too white, suit charges. What more symbolically fraught company to get sued on race discrimination charges than Wonder Bread? Bay Area politician/attorney Angela Alioto, representing 21 black workers at Interstate Brands’ San Francisco bakery, thinks $260 million an appropriate amount to ask for failure to promote and other sins; the trial began May 24. A feud has also developed between Alioto and co-counsel Waukeen McCoy, with Alioto accusing McCoy of swiping three of her clients. (Dennis J. Opatrny, “Wonder Bread Race Discrimination Trial Opens in S.F.”, The Recorder/CalLaw, May 30; Alioto website). Update: jury awarded $11 million in compensatory and $121 million in punitive damages (see Aug. 4).
July 7-9 — Veeps ATLA could love. For the organized plaintiff’s bar, more reason to smile: recent speculation about a running mate pick for Al Gore has centered on such names as Senator Dick Durbin (D-Ill.) and Defense Secretary Bill Cohen, a Republican Senator from Maine before joining the Clinton Administration. Trial lawyers have had few better friends in the U.S. Congress than Durbin, who’s taken a prominent role in advancing their interests in virtually every hot area of recent years: tobacco (where, notwithstanding language on his website about how he’s worked to prevent “unnecessary windfalls for special interests“, he led the successful fight against limiting multi-billion-dollar lawyers’ fees), gun and HMO liability (in both cases sponsoring legislation that would make it easier to sue) and product liability (where he helped lead opposition to various GOP-sponsored bills, such as one to ease liability pressure on biomaterials used in implants and other advanced medicine). (PBS “NewsHour with Jim Lehrer” transcript, May 19, 1998 (tobacco — scroll to near end); Bob Barr (R-Ga.) press release on Durbin gun bill, March 4, 1999; Durbin press release on HMO liability, April 29, 1998; Jeffrey J. Kimbell, “Biomaterials Access Bill Continues To Move Through Congress”, American Society for Artificial Internal Organs, undated 1998) (also see May 8). Cohen, though unlike Durbin not closely identified with the trial lawyer agenda, has the unusual distinction of having worked early in his career for both the Association of Trial Lawyers of America (as an assistant editor-in-chief) and the Maine Trial Lawyers Association (as vice president); not surprisingly, he acquired a reputation on the Hill as one who often strayed from the Republican fold on litigation issues. (Biographical note, University of Maine/Orono; Ramesh Ponnuru, “The Case for Bill Cohen”, National Review Online “Washington Bulletin”, July 3). (DURABLE LINK)
July 7-9 — Inmate: You didn’t supervise me. A former inmate at the Spartanburg County, S.C. jail has filed a lawsuit saying officials negligently failed to supervise him while he engaged in horseplay alone in his cell. Torrence Johnson, of Rock Hill, who was in jail after his arrest on charges of driving with a suspended license and another traffic infraction, says he fell and broke a vertebra with resulting paralysis. “If jail personnel had done a better job of supervising him, Johnson claims, he never would have been able to engage in the ‘horseplay’ that paralyzed him.” “He stood up on a desk in his cell and was cutting back flips off of it,” said jail director Larry Powers. “With the small number of detention officers we have, there’s no way that we can constantly monitor every inmate continuously around the clock.” (Tom Langhorne, “Paralyzed man blames jail for injury”, Spartanburg (S.C.) Herald-Journal, July 6).
July 7-9 — The Wal-Mart docket. The world’s largest retailer gets sued with such regularity that an enterprising Nashville lawyer has erected a site entitled the Wal-Mart Litigation Project devoted to the subject. You can browse 99 Verdicts Against Wal-Mart, search for attorneys who volunteer a willingness to sue the company, or consult a price list of packets you can buy on dozens of specialized topics such as “Pallets or Dollies Left in Aisle Ways (12 items, $100)” “Shopping Carts – Overloaded (4 items, $45)”, and “Restrooms – Water on Floor (3 items, $40)”. Some of the bigger-ticket lawsuits against the chain assert liability over the sale of guns later used to commit crimes, over abductions and other crime occurring in parking lots, and over tobacco sales: a suit in Arkansas last year labeled the retailer a “co-conspirator” with cigarette companies. Update: for another suit, see July 21-23.
SEE ALSO: “Ala.Wal-Mart to pay up to $16 million over shotgun used to kill woman”, AP/Court TV, Feb. 23; Trisha Renaud, “Tangled Mind, Tangled Case”, Fulton County Daily Report (Atlanta), March 24; Bob Van Voris, “Wal-Mart Discovery Tactics Hit”, National Law Journal, March 29; Bob Van Voris, “More Sanctions for Wal-Mart”, National Law Journal, April 14; Seth Blomeley, “Pair sues Wal-Mart, tobacco firm, calls them ‘co-conspirators'”, Arkansas Democrat-Gazette, Dec. 16, 1999 (no longer online); Bob Van Voris, “Wal-Mart’s Bad Day”, National Law Journal, June 5.
July 7-9 — Welcome Australian Bar Association members. Our editor was a featured speaker at the Association’s conference in New York this week, which has helped boost this site’s already considerable traffic from Down Under. For more on Dame Edna’s fateful gladiolus toss, mentioned in our remarks, see our May 26 commentary.
July 6 — Foreign policy by other means. The Constitution entrusts to the President and his appointees the task of managing this nation’s relations with foreign powers, but now some in Congress are keen on giving private litigators ever more authority to initiate courtroom fights against those foreign powers, whether or not the State Department considers that such hostilities fit well into a coordinated national policy. A bill that would entitle U.S. victims of Iranian-backed terrorism to collect compensation payments from blocked Iranian bank accounts is moving swiftly on Capitol Hill, despite a plea from the Clinton Administration’s Stuart Eizenstat that significant foreign policy interests of the government will be impaired if blocking of foreign assets becomes simply a preliminary to attachment of those assets on behalf of particular injured litigants. (Jonathan Groner, “Payback Time for Terror Victims”, Legal Times (Washington), June 7). The touchy issue of U.S. relations with member nations of OPEC has in the past and might someday again engage this nation in armed conflict abroad, but Rep. Benjamin Gilman, R-N.Y., chairman of the House International Relations Committee, has just introduced a Foreign Trust Busting Act that could empower litigants to seize OPEC assets in this country, removing a legal obstacle known as the “Act of State” doctrine, under which U.S. courts generally avoid ascribing liability to the official acts of foreign governments. Presumably oil sheiks would proceed to submit to depositions in American courtrooms and negotiate over the size of the fees payable to entrepreneurial class action lawyers. (Ted Barrett, “Bill will allow antitrust suits against OPEC”, CNN, June 24). And lawyers for Argentine veterans and relatives are in Strasbourg, France, preparing to file a war crimes case against Great Britain over the 1982 sinking of the cruiser General Belgrano, which killed 323 seamen; Britain and Argentina were at war at the time over Argentina’s invasion of the Falkland Islands. (“Argentine war victims sniff justice in Belgrano case”, Reuters/CNN, July 3) (see Feb. 14 commentary and links there, and July 14).
July 6 — Trial-lawyer candidates. New York Press columnist Chris Caldwell, reflecting on the New Jersey Senate primary victory of Goldman Sachs executive Jon Corzine, predicts that more millionaire candidates will enter Democratic politics by staking their own campaigns, but says “[i]t’s unlikely most of them will be finance executives. More probably, they’ll resemble North Carolina Sen. John Edwards, who made his 25 million as a trial lawyer. Trial lawyers are the Democratic Party’s biggest contributors, and the party repays the favor by helping create a favorable litigating climate, and even breeding such golden-egg-laying geese as the various state tobacco agreements. But they’re increasingly coming to the conclusion that there’s no reason to bribe the party when you can run it yourself.
“Typical of the new lawyer/candidate class is Minnesota’s Michael Ciresi, who’s seeking the Democrat/ Farm[er]/ Labor nomination for Senate. Ciresi’s law firm got $400 million of Minnesota’s tobacco money. Why? Because then-state Attorney General Skip Humphrey (Hubert’s son) said it should. We seem to be arriving at a situation in which it is the government itself that puts up candidates.” (“Hill of Beans: Iron Jon (second item), New York Press, June 13).
July 6 — Update: Canadian skydiver recovers damages from teammate. A judge has awarded C$1.1 million ($748,000) to Gerry Dyck, a veteran skydiver who sued teammate Robert Laidlaw for allegedly failing to exercise proper care toward him during a dive. The case, along with other recent suits, had been criticized by some in the skydiving community as bad for the sport (see May 26) (“Canadian skydiver wins lawsuit against teammate”, Reuters/FindLaw, June 26).
July 5 — Prospect of injury no reason not to hire. In May, the Ninth Circuit U.S. Court of Appeals ruled that employers can’t deny a job to a disabled applicant even if the work poses a “direct threat” to that applicant’s health or safety. Chevron had turned away Mario Echazabal for a job at the “coker unit” of its El Segundo, Calif., oil refinery in 1995 after a pre-employment exam revealed that he had a liver disorder that the company’s doctors feared would worsen in the unit’s harsh environment (“coker units” explained: Industrial Fire World site). Prominent liberal jurist Stephen Reinhardt, writing for a unanimous three-judge panel, held that it should be up to a disabled worker whether to risk a toxic exposure — never mind that the employer will predictably be presented with much or all of the bill if the exposure does wind up incapacitating the worker. Jeffrey Tanenbaum, with the San Francisco office of the management-side law firm Littler Mendelson, said “either the decision is terribly wrong, or the ADA is written in a ludicrous manner,” because “it makes no sense to make an employer violate a federal or state health and safety law,” referring to Occupational Safety and Health Administration statutes that require employers to avoid exposing employees to injury. (Michael Joe, “Employment Bar in Tizzy Over 9th Circuit Decision”, The Recorder/CalLaw, June 16).
July 5 — “Exporting tort awards”. Study of more than 7,000 personal injury cases by Eric Helland (Claremont McKenna College) and Alexander Tabarrok (Independent Institute) finds civil awards against out-of-state defendants ran an average of $652,000 in states where judges reach office by partisan election, but only $385,000 where selection is nonpartisan. For cases against in-state defendants, the gap was a narrower $276,000 vs. $208,000 — suggesting that while one effect of partisan judicial elections may be to raise the level of awards, an even more important effect may be to worsen the bias against out-of state entities which are not represented in a state’s political process but are subject to wealth redistribution by its courts (“Exporting Tort Awards“, Regulation, vol. 23, no. 2 (autoredirects to pdf document); “The Effect of Electoral Institutions on Tort Awards” (links to pdf document), Independent Institute Working Paper #1).
July 5 — We probably need a FAQ. “Does your law firm handle driving under the influence cases?” — thus a recent email to this site from a Mr. R.S. We do seem to spend an inordinate amount of time explaining to correspondents that we aren’t a law firm or legal referral service, and that we can’t advise folks with their legal problems, no way, nohow — both from lack of time and inclination and because we fear being dragged off to the Unauthorized Practice dungeons where they stow people who presume to dispense such advice without advance permission from the bar.
July 3-4 — “Parody of animal rights site told to close”. Several years ago internet entrepreneur Michael Doughney registered the web address www.peta.org and used it to put up a site called People Eating Tasty Animals, parodying the militant animal rights group People for the Ethical Treatment of Animals. Now a federal judge “has ordered him to relinquish the web address to PETA and limit his use of domain names to those not ‘confusingly similar'”. Doughney’s lawyer says he plans to appeal and says it’s not a cybersquatting case because his client had no wish to sell the domain name but simply wanted to use it for parody. Doughney has moved the site here; it includes a substantial list of links to sites which take the position that there’s nothing unethical about animal husbandry as such, as PETA would have it. (“Parody of animal rights site told to close”, Ananova.com, June 21; “Domain Strategies for Geniuses”, Rick E. Bruner’s Executive Summary, May 12, 1998). As for PETA, it’s not a group to shy away from charges of hypocrisy: it itself registered the domain name ringlingbrothers.com and used it for a site decrying alleged mistreatment of circus animals. A lawsuit by the real Ringling Brothers Circus ended with PETA’s agreement to relinquish the name. (“PETA’s Internet hypocrisy”, Animal Rights News (Brian Carnell), May 18, 1998; DMOZ).
July 3-4 — Multiple chemical sensitivity from school construction. At Gloucester High School on Massachusetts’s North Shore, some present and former staff members and students have sued the architects and contractors after a school construction project whose fumes, some of them say, sensitized them to the point where they now grow ill from a whiff of window cleaner, perfume, hairspray, or new upholstery, or even from contact with people who’ve laundered their clothes in regular detergent. The reporter doesn’t quote anyone who seems familiar with the skeptics’ case against MCS, but to us this sounds like a case for Michael Fumento (see his “Sick of It All”, Reason, June 1996). (Beth Daley, “Disrupted lives”, Boston Globe, June 26)
July 3-4 — A Harvard call for selective rain. “So far, legislators, loath to tamper with the dot-com wealth machine powering the U.S. economy, have left Web companies alone. But Jonathan Zittrain, executive director of Harvard’s Berkman Center for Internet and Society, believes that era is ending. Hot-button issues like personal privacy are putting Web companies under a microscope, he says. And continuing advancements in technology will soon make it easier for companies to patrol their sites much more aggressively. ‘No one wants to rain on the Internet parade so much that you wash it out,’ Mr. Zittrain says. ‘But people are starting to realize you’ll be able to very selectively rain on the parade'”. Aside from feeling some alarm at the content of these remarks by Mr. Zittrain, we hereby nominate them for the Unfortunate Metaphor Award: if rain is the sort of thing he thinks can be made to fall “very selectively”, why do we keep hearing that it falls on the just and the unjust alike? (Thomas E. Weber, “E-World: Recent Flaps Raise Questions About Role of Middlemen on Web”, Wall Street Journal, June 5) (fee).
July 3-4 — Overlawyered.com one year old. We started last July 1 and have set new visitor records in nearly every month since then, including last month … thanks for your support!
July 19-20 — “Coke Plaintiff Eavesdrops on Lawyers; Case Unravels”. After lawyers suing Coca-Cola on discrimination charges hold a conference call with their clients and with Jesse Jackson, one of the clients, a Coke security guard named Gregory Clark, quietly decides to stay on the line, rather than hang up as the others and Jackson do, and listen to what the lawyers say among themselves. The sensational results are aired in this remarkable article in the Atlanta legal paper, which just might blow the tightly screwed cap off the whole issue of lawyers’ management of litigation in their own interest — don’t even think of missing it (R. Robin McDonald, Fulton County Daily Report (Atlanta), July 18) (Atlanta Journal-Constitution special page on Coke discrimination litigation).
July 19-20 — Editorial roundup: “The wrong verdict on tobacco”. By a wide margin, the American people believe that though cigarettes are harmful, it should be lawful to sell them. “Last week’s verdict by a Florida jury, however, suggests that what the American people want is no longer terribly important when it comes to tobacco.” (Chicago Tribune, editorial, July 18). “[T]he judge prohibited any testimony relating to choice and personal responsibility,” contends the New York Post. In plain English, the fix was in.” (“Milking the Tobacco Cow”, July 18). Jury foreman Leighton Finegan said he was “insulted” when tobacco company lawyers raised the possibility that the throat cancer of one of the plaintiffs might have been caused by occupational dust exposure, but it’s perfectly legitimate for defendants to point out that health problems arise from multiple origins, which sheds light on the unmanageable nature of the supposed “class” (Hickory (N.C.) Record, “$145,000,000,000!”, July 17). “It says something about the class-action lawsuit Florida smokers filed against the industry that two of the lead plaintiffs in the case were medical officials who bragged of their own ignorance,” comments the Washington Times. “Said one, a 44-year-old nurse, ‘I had no idea there was anything wrong with cigarettes at all.” (“That will be $145 billion, please”, July 17). And Smarter Times, the new online venture edited by Ira Stoll that keeps a watchful journalistic eye on the New York Times, notes that the newspaper’s July 15 editorial “basically comes out in favor of using class action lawsuits to put companies out of business, even when the Congress or state legislatures are unwilling to declare the products illegal.” (Issue #28).
July 19-20 — Disabled accessibility for campaign websites: the gotcha game. The Washington Post‘s online edition plays gotcha with political campaign websites, most of which fail to heed disabled-accessibility guidelines of the sort that may already be legally binding on a wide range of private sites. The Al Gore (D) and Rick Lazio (R-N.Y.) websites are among the minority that comply with “Bobby“, the most widely used program for evaluating a site’s disabled accessibility. Sites that fall short on “Bobby” include those of George W. Bush (R), Hillary Clinton (D-N.Y.), Ralph Nader (Green) and Patrick Buchanan (Reform). (Ryan Thornburg, Mark Stencel and Ben White, “Political Graffiti Goes Online” (third item), WashingtonPost.com, July 17).
However, running the Thornburg-Stencel-White article itself through a “Bobby” check discloses that as of Tuesday evening it itself suffered from at least fifteen violations of disabled accessibility rules: lack of alternative text for images (12 instances), lack of redundant text links for server-side image map hot-spots (2 instances), and lack of alt text for image-type buttons in forms (1 instance) (full “Bobby” evaluation of Post article). The article is also reprinted on Slate, where as of Tuesday evening it suffered from at least 19 Bobby infractions, including lack of alt text (18 instances) and lack of button text (once) (evaluation). Numbers are subject to change if and as the pages change, of course.
July 19-20 — Target Detroit. “Those in Michigan cheering state assaults on the tobacco industry and gun manufacturers may want to hold their applause,” writes the Detroit News‘ Jon Pepper, since the state’s leading industry, automaking, could face assault from some of the same litigation forces. (“Auto industry could follow guns, tobacco into courtroom”, June 4). Many lawyers are eager to pin liability on the design of sport utility vehicles because of their tendency to inflict higher than usual damage on other motorists and pedestrians, but they’ve had trouble so far finding a theory that will stick (Keith Bradsher, “S.U.V. Suits Still Face Long Odds”, New York Times, May 30). And a federal judge has refused to dismiss a defamation countersuit by Philadelphia class action firm Greitzer & Locks against DaimlerChrysler and its associate general counsel, Lew Goldfarb, arising from charges DaimlerChrysler filed last fall (see Nov. 12) charging the Greitzer firm and another attorney with the filing of abusive class action litigation. The Greitzer firm is now suing Mr. Goldfarb personally for defamation and interference with contractual advantage and cites, as evidence of malice, his description of the cases filed by Greitzer & Locks as “a form of legalized blackmail” and of one such suit as one that “belongs in the class action hall of shame.” How many times do we have to warn you to watch very carefully what you say when you criticize lawyers? (Shannon P. Duffy, “DaimlerChrysler GC Can Be Sued in Pennsylvania”, The Legal Intelligencer (Philadelphia), June 30; “Greitzer & Locks Takes a Swing Of Its Own at DaimlerChrysler”, Jan. 14).
July 18 — Florida tobacco verdict. Our editor has an op-ed piece in today’s Wall Street Journal discussing last week’s punitive award in the Florida tobacco class action: Walter Olson, “‘The Runaway Jury’ is No Myth”, Jul. 18. For more on the Engle case, see July 10; our editor’s Wall Street Journal op-ed from Jul. 12, 1999; the related commentaries on our tobacco-litigation page; and the press clips at Yahoo Full Coverage. Also check our numerous commentaries, from yesterday and earlier, on the multistate tobacco settlement, which counts as trial lawyers’ bird-in-the-hand compared with Engle‘s bird-in-the-bush. Later developments in case: see May 15, 2004 and links from there.
July 18 — “Court says warning about hot coffee unnecessary”. It makes a contrast to the famed McDonald’s case: the Nevada Supreme Court, upholding a lower court’s decision, has dismissed a lawsuit against a restaurant and its suppliers alleging negligent failure to warn about the dangers of hot coffee. Lane Burns had sued the Turtle Stop restaurant after spilling coffee on his leg and suffering burns, but District Judge Gene Porter ruled that the “danger is open and obvious.” That differs from the sentiments of the judge and jury in Albuquerque, New Mexico, where octogenarian Stella Liebeck won a $2.9 million judgment against the fast-food chain, which was later reduced to $480,000 and settled for an undisclosed sum. (Cy Ryan, “Court says warning about hot coffee unnecessary”, Las Vegas Sun, July 11).
July 18 — “Chutzpah is. . .” Eugene Volokh of UCLA law school writes as follows: “Chutzpah is . . . when you get a job working for your wife’s parents because you are their son-in-law, and then when you and she get divorced and her parents fire you, you sue them for marital status discrimination.
“This is exactly what happened in Matteson v. Prince, Inc., Montana Dep’t of Lab. & Indus. No. 9901008658 (1999) (pdf document). Amazingly, the agency held that the employer’s behavior was illegal discrimination, but Matteson wasn’t entitled to any damages because in this particular case the ex-son-in-law would have been fired in any event because he had gotten into a shouting match with his employers at work.”
July 18 — Breakthrough for plaintiffs on latex gloves? Last Thursday an Alameda County, Calif. jury returned an $800,000 award to a health care worker against Baxter Health Care, which formerly made latex gloves for hospital use. Naturally occurring substances in the gloves sometimes trigger virulent allergies in health care workers which prevent them from continuing in medical work, and lawyers have argued that had Baxter instituted a practice of washing the gloves before sale to remove surface proteins, it would have reduced their allergy-stimulating potential. Hundreds more latex allergy lawsuits are pending, and lawyers are hoping the new case, McGinnis v. Baxter Health Care, will serve as a model for others. (Sonia Giordani, “California Latex Glove Verdict Sets Tone”, The Recorder (San Francisco), July 17) (more about latex allergies) (see also Oct. 26).
July 17 — Dershowitz’s Florida frolic? Alan Dershowitz is demanding $34 million for putting in 118 hours of work on the state of Florida’s Medicaid-reimbursement tobacco suit, according to two of the lawyers who helped mastermind that suit, Robert Montgomery and Sheldon Schlesinger. The two filed suit against the famed Harvard law prof last week, asking a judge to determine whether he’s entitled to a bonus they say they never promised him. Through their attorney they allege that Dershowitz is asserting an entitlement to 1 percent of the gargantuan $3.4 billion fee award made to the attorneys who represented the state, which would amount to $34 million, but they say he hasn’t submitted any hourly time sheets to back up that claim. “He wants a lot of money, and he’s not entitled to it,” said J. Michael Burman, attorney for Montgomery and Schlesinger. If the lawyers’ figures are accurate, $34 million divided by 118 hours would work out to $288,000 an hour. (Jon Burstein, “Lawyer wants $34 million for working 118 hours on Florida’s case against tobacco companies”, Fort Lauderdale Sun-Sentinel, July 14; more on Florida tobacco fees: April 12, December 27-28).
July 17 — Ness Motley’s aide-Grégoire. In a single day, December 8, 1999, Christine Gregoire, the attorney general from the state of Washington who’s been mentioned as a possible AG in a Gore administration, saw her re-election campaign kitty more than double. The benefactors, who sent nearly $23,000, weren’t Washington residents at all, but rather two dozen lawyers and their relatives associated with the Charleston, S.C. law firm of Ness, Motley, which is expected to pocket a billion dollars or more in fees from the multistate tobacco settlement that Gregoire was instrumental in brokering. An aide to Gregoire, who engaged Ness Motley to represent Washington along with the many other states it represented, dismisses talk of payoffs and calls the contributions “a reflection that someone has a high regard for an elected official.” “I only wish we had given her more,” says Ness superlawyer Joe Rice, quoted in this article in Mother Jones spotlighting the sluicing of tobacco-fee money to friendly Democratic pols. (Rick Anderson, “Tobacco money flows both ways”, Mother Jones, July 6).
July 17 — Challenging the multistate settlement. In a Cato Institute paper, Thomas C. O’Brien argues that the anticompetitive provisions of the multistate tobacco settlement, such as those curbing entry by newly formed cigarette companies, should rightly be seen as themselves an antitrust violation and as going beyond the duly constituted power of the fifty states, which would open up the possibility of injunctive relief and treble damage remedies “available in private lawsuits brought directly by injured parties, including smokers and nonparticipating tobacco companies.” (Thomas C. O’Brien, “Constitutional and Antitrust Violations of the Multistate Tobacco Settlement”, Cato Policy Analysis No. 371, May 18 (summary links to PDF document)). Also from Cato, Richard E. Wagner of George Mason University offers another critique of the multistate settlement (“Understanding the Tobacco Settlement: The State as Partisan Plaintiff”, Regulation, vol. 22, no. 4 (table of contents; follow links to PDF document). Cato, the Competitive Enterprise Institute and the National Smokers Alliance filed an amicus brief last week urging the Third Circuit to invalidate the nationwide tobacco settlement agreement on constitutional grounds. (“Public Interest Groups Urge Court to Invalidate Tobacco Agreement ” CEI press release, July 13). On collusive aspects of the multistate settlement, see our commentary for July 29 of last year; Rinat Fried, “Distributors Challenging Tobacco Deal”, The Recorder/CalLaw, June 30, 1999; and “Puff, the Magic Settlement” (Reason, January).
July 14-16 — “Are lawyers running America?”. Time‘s feature story this week on the Fourth Branch leads with the tale of tobacco/HMO nemesis Dickie Scruggs’ recent appearance before the Connecticut State Medical Society (see Feb. 22, “P.S.”), where he “was introduced so gushingly that even he was embarrassed. ‘You forgot to mention,’ he chided the society’s head, ‘that I rested on the seventh day.'” Among bits of new-to-us info about the great legal magnates, we learned that “Wayne Reaud (pronounced Ree-oh) has used his hundreds of millions of dollars in fees from asbestos and other ‘toxic tort’ litigation to buy the local newspaper and a chunk of downtown real estate in his hometown of Beaumont, Texas,” while Florida’s Frederic Levin “concedes his firm’s $300 million take [from tobacco] was ‘totally obscene’ and says he’s giving much of it to charity,” having already had the University of Florida Law School named after him following a big gift. Who’s to be sued next? All sorts of targets, but the magazine reports that some lawyers “are considering suits against the alcoholic-beverage industry, which they would hold responsible for drunk-driving deaths and other alcohol-related losses, using the same ‘negligent marketing’ allegations that have been lodged against gunmakers.” Quotes our editor twice, too. Most memorable line: “Ask Scruggs if trial lawyers are trying to run America, and he doesn’t bother to deny it. ‘Somebody’s got to do it,’ he says, laughing.” (Adam Cohen, “Are lawyers running America?”, Time, July 17)
July 14-16 — “‘Whiplash!’ America’s most frivolous lawsuits”. Michigan Lawsuit Abuse Watch is promoting this new book by comedy writer James Percelay and Jeremy Deutchman (Andrews & McMeel). Five of the cases from the book are retold at the M-LAW site, including ones involving a woman who sued a guide-dog service because the dog it provided did not keep its blind human master from stepping on her foot and breaking her toe; a man who cut off his hand, believing it Satanically possessed, refused a doctor’s pleas to let him reattach it, and then sued the doctor later for complying with his instructions; a college student who tried to “moon” friends from a third-floor window, fell out and sued for his injuries; a criminal who filed an excessive-force suit against police after being apprehended for a particularly brutal crime, and won a $184,000 jury verdict, later thrown out; and a man who spilled a cold chocolate milkshake on himself, was so startled that he crashed his car, and sued McDonald’s. (All five cases were sooner or later unsuccessful in the courts.) We haven’t seen the actual book yet (or fact-checked the five cases, although we remember most of them from when they originally happened) but it seems to be selling pretty well on Amazon. Also check out M-LAW’s “obligatory disclaimer“.
July 14-16 — Never too stale a claim. Asbestos, lead paint, small-plane and machine-tool liability cases have all demonstrated that American lawyers are willing to trace responsibility back at least as far as the first decades of the twentieth century if that’s what it takes to find a deep pocket chargeable with injury. So it shouldn’t really have come as much of a surprise when a Texas court entered a $234 million default judgment against the government of Russia on behalf of a man whose grandfather’s property was confiscated during the 1917 Bolshevik Revolution. Dan Nelson, attorney for claimant Lee Magness, “says he will start trying to collect by seizing any Russian art exhibits on tour in this country”, and preliminary maneuvers to that effect led to a temporary delay in two art tours. The Russian government has filed a protest with our State Department (for more on the foreign-policy repercussions of the American way of suing, see July 6). The extreme willingness of our current legal system to revisit very old transactions in search of grist for litigation — much in contrast with an earlier law’s concern for repose and finality — probably made it inevitable that we’d see the current boomlet of discussion regarding reparations claims over slavery: if we’re already willing to go back 83 years to 1917, why not a further 52 years to 1865? Besides, some of us have our eye on the British, who’ve enjoyed virtual impunity for much too long over their burning of American homes during the Revolutionary War and War of 1812. (Susan Borreson, “Texans’ Default Judgment Against Russians Stands”, Texas Lawyer, Feb. 1).
July 13 — Class-action assault on eBay. It’s doubtful whether eBay, the massively popular electronic flea market, would ever have gotten off the ground had its proprietors been required to warrant the goods being sold. In April, however, attorney James Krause of the San Diego-based class-action firm of Krause & Kalfayan filed a lawsuit on behalf of six California residents who had bought sports memorabilia, the subject of widely reported fakery, over the online marketplace. An eight-year-old provision of California law stipulates that dealers in autographed sports memorabilia must provide a certificate of authenticity. Krause is seeking class-action status on behalf of all California buyers, and is asking for the penalties laid out in the statute, which according to AuctionWatch “entitles the buyer to ten times the purchase amount and other damages should an autograph prove to be forged or come without this certificate”. EBay contends that it is not a dealer or auctioneer but simply provides the modern equivalent of newspaper classified ads, so that only the individual sellers could properly be held liable. “If successful, the suit could undermine eBay’s business model,” reports the Industry Standard. “Legal experts say that if the company can be held liable for the actions of its users, it is likely to face a flurry of suits that would severely handicap its business.” Krause & Kalfayan has also filed suits on unrelated theories against such firms as Microsoft (see Dec. 23), Federal Express, Atlantic Richfield, Nine West and Charles Schwab (complaint and related news story at Krause & Kalfayan site; Victoria Slind-Flor, “EBay Denies Auctioneer Status”, National Law Journal, July 10; Miguel Helft, “EBay: We’re Not Auctioneers”, Industry Standard, May 1; “The Class Action Suit”, AuctionWatch, undated). Bonus:Weird eBay Auctions (WhatTheHeck.com) (& update Nov. 22-23: judge certifies class action)
July 13 — Nader on the Corvair. The litigation advocate’s presidential candidacy makes a good occasion to revisit his original claim to fame, the Corvair episode. The car’s safety record turned out in hindsight far better than you’d have guessed reading Unsafe at Any Speed, but “being wrong on the Corvair hasn’t hurt Nader’s career one bit,” writes Ronald Bailey, science correspondent for Reason. (“‘Saint Ralph’s’ Original Sin”, National Review Online, June 28).
MORE LINKS: Bill Vance, CanadianDriver.com (“The Corvair’s handling would later be exonerated, but the damage had been done”); Corvair Society of America (CORSA); Brock Yates, Car & Driver, reprinted in CORSA’sThe Windmill, Nov./Dec. 1971, and Charles B. Camp, “Popularity of Nader Declines to Its Nadir Among Corvair Owners”, Wall Street Journal, July 23, 1971, reprinted at Rick’s Corvair Scrapbook; Thomas Sowell, “Lawsuits and Legal Visions”, 1987 speech at Shavano Institute Seminar, reprinted at tsowell.com; Andrew Gurudata, “Great Car At Any Speed“, Corvair Webring; Corvair Project.
July 13 — Access to something. Federal prosecutors are investigating claims that attorney Denice Patrick of Lynnwood, Washington, outside of Seattle, violated ethics and conflict-of-interest rules. Specifically, they’re looking into allegations that while employed to write legal decisions for the federal Social Security Administration, she also “moonlighted for more than a year as a private lawyer who devoted much of her practice to bringing claims against the agency.” Ms. Patrick, whose attorney denies the charges and says they’re being brought against her in retaliation for whistleblowing about agency wrongdoing, has been active on a Washington State Bar Association panel promoting “access to justice“. (Sam Skolnik, “Lawyer allegedly violated ethics”, Seattle Post-Intelligencer, May 22).
July 12 — Battered? Hand over your kids. Latest advance in child protection: seizing and placing in foster care children whose moms are abused by their husbands or boyfriends or vice versa. New York City can remove kids from their homes if either parent is believed to “engage in acts of domestic violence,” such as slaps, kicks, shoves, or more serious violence, whether or not these acts are directed at the children. “Often,” reports the New York Times‘s Somini Sengupta, the parent who loses children this way “may have done nothing wrong or negligent, but simply lacked the financial or emotional resources to leave an abusive partner.” The rules encourage victims of abuse to conceal it, fearing their kids will be taken from them if they tell medical or social workers. And while it’s clearly not good for a child to observe parents engaged in domestic battles, advocates say the city underestimates the trauma to kids of being yanked out of the home they know and sent to live among strangers. (Somini Sengupta, “Tough Justice: Taking a Child When One Parent Is Battered”, New York Times, July 8 (reg)). Update Oct. 31, 2004: New York high court ruling favorable to mothers; Dec. 19, 2004 city agrees to change policy.
July 12 — Forum-shopping in South Carolina. Last year, AP reports, the big railroad CSX paid out about $5 million in five accident lawsuits filed in Hampton County, S.C., and it faces another 15 cases pending in the county, all represented by the Hampton law firm of Peters, Murdaugh, Parker, Eltzroth & Detrick. However, none of the five accidents being sued over had actually taken place in Hampton County; all had been taken there from elsewhere in search of the plaintiff-friendly brand of justice handed out in the impoverished county, where 40 percent of residents have not graduated high school. “They are poor people who don’t like big corporations,” said Dick Harpootlian, a prominent plaintiff’s lawyer in the state capital, Columbia, as well as chairman of the state’s Democratic Party. “We don’t mind being there if we belong there, but these cases are being valued at between two and three times what they would elsewhere,” said Jim Lady, a lawyer for the railroad, who adds that it would be equally unfair if the law permitted his client to remove all cases to Lexington County, where jurors are known as being as conservative as those in Hampton are liberal. Now a move is afoot in the state legislature to curb forum-shopping by giving plaintiffs a choice of at most three venues: the one where the accident took place, the one where they live, or the one where the railroad is headquartered. Trial lawyers are upset: “If they are paying us more than what they are paying elsewhere, it’s because they are not paying fairly in other counties,” says Johnny Parker, a lawyer with the Peters firm in Hampton. State Sen. Brad Hutto (D-Orangeburg), whose district includes Hampton County and who also happens to be a trial attorney, says that the move “smacks of special-interest legislation … Every courthouse in this state is presided over by a judge. If CSX doesn’t like the result of a court case, they have the right to appeal. It’s not the law firm that’s being punished, it’s the person bringing the suit.” The Virginia legislature some years back enacted similar legislation curbing the ability of lawyers from around the state to file railroad suits in the city of Portsmouth, where juries had a reputation for big-ticket verdicts. (Associated Press, “Bill would make generous Hampton County juries unavilable in many railroad suits,” South Carolina state/regional wire, June 12).
July 12 — Suing Nike for getting hacked. Some Web-watchers have been predicting (see Feb. 26) that lawsuits may be forthcoming attempting to lay the costs of hacker attacks on deep-pocket entities that, it’s argued, should have done more to prevent them. Now a Web entrepreneur named Greg Lloyd Smith says his lawyers are drawing up a complaint against Nike. “His beef: When Nike’s website was hijacked [last month], whoever hijacked the domain re-directed Nike.com’s traffic through Smith’s Web servers in the U.K., bogging them down and costing Smith’s Web hosting company time and money.” (Craig Bicknell, “Whom to Sue for Nike.com Hack?”, Wired News, June 29; “Webjackers Do It To Nike”, Wired News, June 21).
July 11 — Australia: antibias laws curb speech. An official civil-rights tribunal in New South Wales, the most populous state in Australia, has ruled that the Australian Financial Review committed an unlawful act of bias when it published an article on its opinion page making slighting comments about Palestinians. The offending piece, a short item by journalist Tom Switzer, had suggested that Palestinians had engaged in acts of terrorism, could not be trusted in Mideast peace talks, and remained “vicious thugs who show no serious willingness to comply with agreements”. The tribunal “found it was irrelevant whether the author intended to incite racial hatred or whether anyone had in fact been incited”, and dismissed a free-comment defense as irrelevant. It has yet to decide on a “remedy” for the speech; among its powers are to order a retraction and apology, and to order the paper, which is owned by the John Fairfax Group, to “implement a program or policy aimed at eliminating unlawful discrimination”. (Mike Seccombe, “Finding ‘restricts’ freedom of speech”, Sydney Morning Herald, Jul. 10) (via Freedom News Daily).
July 11 — “Report on medical errors called erroneous”. You read it here first (see Feb. 22, Feb. 28, March 7 commentaries): more critics are stepping forward to find fault with that highly publicized study alleging that “medical errors” kill between 44,000 and 98,000 patients a year. In the Journal of the American Medical Association, three doctors associated with the University of Indiana’s Regenstreif Institute explain why they believe the study is so constructed as to exaggerate the avoidable damage done by medical mistakes, and study author Lucian Leape, of Harvard’s School of Public Health, responds with a defense. (Rick Weiss, “Report on Medical Errors Called Erroneous”, Washington Post, July 5; Clement J. McDonald; Michael Weiner; Siu L. Hui, “Deaths Due to Medical Errors Are Exaggerated in Institute of Medicine Report” (text) (pdf); Lucian L. Leape, “Institute of Medicine Medical Error Figures Are Not Exaggerated” (text) (pdf), JAMA, July 5 (table of contents))
July 11 — ADA’s unintended consequences. The Americans with Disabilities Act was supposed to improve the employment outlook for disabled persons, but instead their participation in the labor force has plunged steeply since the act’s passage compared with that of the able-bodied. Thomas DeLeire, assistant professor at the University of Chicago, Harris Graduate School of Public Policy Studies, analyzed data for a sample of men aged 18 to 65 and found that labor force participation fell after the act for virtually every identifiable subgroup of disabled men, but that the relative slippage was worst for those with lower levels of job experience and education, and those with mental impairments. DeLeire believes the law has imposed on employers perverse incentives not to hire and retain disabled workers, since they now risk the possibility of costly and uncertain disputes should they differ with the worker about what constitutes “reasonable” (and thus obligatory) accommodation. (“The Unintended Consequences of the Americans with Disabilities Act”, Regulation, v. 23, no. 1 — table of contents links to pdf document).
July 31 — Clinton’s date with ATLA. Bill Clinton’s speaking engagement yesterday before trial lawyers at their convention draws this hard-hitting column by New York Post‘s Rod Dreher, who writes: “Though he has signed a few small tort-reform measures, the President has vetoed every major effort to rein in the berserk lawsuit culture, which is turning civil courts into casinos for trial lawyers and greedy plaintiffs.” Dreher’s column also quotes this site’s editor at length about how tobacco lawyers since their lucrative settlement have become “an institutional ATM for the Democratic Party”; on how Gov. George Bush pushed through legal reform in Texas, a state where they said it couldn’t be done; and on what’s likely to happen if voters don’t break the lawyers’ momentum at the polls this fall (Rod Dreher, “Greedy Dems Refuse to Curb Lawsuit Madness”, New York Post, Jul. 30). Best of all, Dreher refers to this site as “the must-bookmark www.overlawyered.com”.
July 31 — No diaries for Cheney. “A small anecdote about a large facet of his [Dick Cheney’s] personality. [At a White House dinner] in the summer of 1992 … President Bush’s sister turned to him and said she hoped he would someday write a book, and hoped he was keeping a diary. He sort of winced, and looked down. No, he said, ‘unfortunately you can’t keep diaries in a position like mine anymore.’ He explained that anything he wrote could be subpoenaed or become evidence in some potential legal action. ‘So you can’t keep and recount your thoughts anymore.’ We talked about what a loss this is for history. It concerned him. It was serious; so is he. Then everyone started talking politics again.” (Peggy Noonan, “The Un-Clinton”, Wall Street Journal, July 26, subscriber site).
July 31 — Nader cartoon of the year. By Henry Payne for the Detroit News, it depicts Ralph as the parrot on a pirate’s shoulder, and you can guess who’s the pirate (at News site — July 25) (via National Journal Convention Daily).
July 31 — Our most ominous export. Trial lawyers in the United States have been steadily internationalizing their activities, bringing the putative benefits of American-style product liability suits to faraway nations. Now it’s happening with litigation against gunmakers: attorney Elisa Barnes, who managed the Hamilton v. Accu-Tek case in Brooklyn, is assisting a Brazilian gun-control group in a suit against local firearms maker Taurus International over sales of its lawful product. (“Brazil’s biggest gun maker under fire from rights group”, AP/Dallas Morning News, July 27).
July 31 — Running City Hall? Stock up on lawyers. “Time was that most small cities in California were represented by one in-house attorney, who likely had a sole practice on the side. Today, laws such as the Americans With Disabilities Act, requirements such as environmental impact reports and intricate ballot initiatives make running a city too complicated for that kind of legal staffing.” (Matthew Leising, “Meyers Nave spins cities’ legal hassles into gold”, National Law Journal, August 9, 1999, not online).
July 28-30 — Clinton to speak Sunday to ATLA convention. Confirmed on ATLA’s website: President Bill Clinton is scheduled to address the annual convention of the Association of Trial Lawyers of America at Chicago’s Hyatt Regency on Sunday at 2:30 p.m., the first such appearance by a sitting president ever, and another confirmation that this administration is friendlier to the litigation lobby than any before it in American history. More than 3,000 trial lawyers are expected to attend.
July 28-30 — New subpage on Overlawyered.com: Trial lawyers and politics. Former California Assembly Speaker Willie Brown has called plaintiff’s lawyers “anchor tenants” of the Democratic Party, and they’re rather well connected in many Republican circles as well (as for their longtime role in backing Ralph Nader, currently running as a Green, don’t get us started). Is anyone keeping proper tabs of their activities in the political sphere? We’re not sure, but figure it can’t hurt to start a new subpage on that topic.
July 28-30 — Wall Street Journal “OpinionJournal.com” launches. Today the Wall Street Journal is scheduled to go live with its eagerly awaited OpinionJournal.com, which is expected to embody the crusading spirit of the paper’s editorial page. They tell us Overlawyered.com will be listed among OpinionJournal.com’s “favorite” sites, with a standing link.
July 28-30 — “How the ADA Handicaps Me”. “I graduated from a good law school but finding a job has been difficult, much more difficult, than I expected,” writes Julie Hofius, an Ohio attorney who uses a wheelchair. “Getting interviews has not been a problem. Getting second interviews or job offers has been. … The physical obstacles have been removed, but they have been replaced with a more daunting obstacle: the employer’s fear of lawsuits. … job-hunters with disabilities are viewed by employers as ‘lawsuits on wheels.'” (“Let’s get beyond victimhood of disabilities act”, Houston Chronicle, July 25, and Cato Daily Commentary, July 26). The tenth anniversary of the enactment of the Americans with Disabilities Act has occasioned a flood of commentary and reportage, an ample selection of which is found at Yahoo Full Coverage. Check out in particular Carolyn Lochhead, “Collecting on a Promise”, San Francisco Chronicle, July 26, and Aaron Brown, “What’s Changed? Assessing the Disabilities Act, 10 Years Later”, ABCNews.com, July 26 (sidebar, “Too Many Lawsuits?” by Betsy Stark, quotes this site’s editor).
July 28-30 — Smoking and responsibility: columnists weigh in. “I watched my father die from smoking … [he] would not have taken kindly to being portrayed as an innocent victim of the tobacco industry,” writes the New York Press‘s John Strausbaugh. “The popularity of the fairy tale in which Demon Philip Morris pins innocent victims to the ground and forces them to smoke cigarette after cigarette until they die is another example of the way Americans enjoy infantilizing themselves and shirking responsibility for their own lives.” (“Demoned Weed”, Jul. 22). Legendary Pittsburgh shortstop Honus Wagner, of baseball-card fame, “demanded that his card be taken off cigarette packs because smoking was bad, and habit-forming. That, my friends, was in 1910. Even back then we all knew cigarette smoking was bad. … When do we stop blaming other people?” (Steve Dunleavy, “Cig-Makers Paying Price for Smokers’ Free Choice”, New York Post, Jul. 16). $145 billion, the punitive damages figure assessed by a Florida jury earlier this month, amounts to “more than twice the gross domestic product of New Zealand. It is, in short, a ridiculous number, pulled out of thin air …Why not $145 trillion?” (Jacob Sullum, “The $145 Billion Message”, Creators’ Syndicate column, July 19). And even before the state settlement jacked up the price of cigarettes for the financial benefit of state governments and their lawyers, government was reaping a bigger profit through taxes from tobacco than were manufacturers: roughly 74 cents per pack, compared with 28 cents’ profit for Philip Morris, according to Sullum. “Some will protest that there is a moral distinction here. To be sure: While politicians and tobacco companies both take money from smokers, only the tobacco companies give them something in return.” (Jacob Sullum, New York Times, July 20, reprinted at Reason site).
July 28-30 — Lenzner: “I think what we do is practice law”. Profile of Terry Lenzner, much-feared Washington private investigator in the news recently for his firm’s attempts to buy trash from pro-Microsoft advocacy groups on behalf of client Oracle, and whose services are in brisk demand from law firms and Clinton Administration figures wishing to dig dirt on their opponents. Known for his operatives’ irregular methods of evidence-gathering — he recommends posing as journalists to worm information out of unwary prospects — Lenzner recently addressed a seminar at Harvard about his calling. “I think what we do is practice law, although I use a lot of nonlawyers, he told the attendees.” (Brian Blomquist, “Gumshoe’s reputation is all heel and no soul”, New York Post, Jul. 18).
July 26-27 — Losing your legislative battles? Just sue instead. Lawyers for Planned Parenthood in Seattle have filed a lawsuit against the Bartell drugstore chain, claiming it amounts to sex discrimination for the company’s employee health plan not to cover contraception. Many employers’ health plans curb costs by not covering procedures not deemed medically necessary, such as cosmetic surgery, contraception, in vitro fertilization, and elective weight reduction. Planned Parenthood had earlier sought legislation in Olympia, the state capital, to compel employer plans to cover contraception, as has been done in about a dozen states, but strong opposition defeated their efforts; running to court, however, dispenses with the tiresome need to muster legislative majorities. A Planned Parenthood official said Bartell was selected as the target for the test case “because the drugstore chain is generally considered to be a good employer and progressive company” — that’ll teach ’em. (Catherine Tarpley, “Bartell sued over contraceptives coverage”, Seattle Times, July 20; David A. Fahrenthold, “Woman Sues for Contraception Coverage”, Washington Post, July 22; Planned Parenthood of Western Washington advocacy site, covermypills.org).
July 26-27 — Update: Tourette’s bagger case. The Michigan Court of Appeals has upheld the right of the Farmer Jack supermarket chain to refuse to employ Karl Petzold, 22, as a bagger in its checkout lines. Petzold suffers from coprolalia, a symptom of Tourette’s Syndrome that causes him involuntarily to utter obscenities and racial slurs (see June 9). “We find it ridiculous to expect a business … to tolerate this type of language in the presence of its customers, even though we understand that because of plaintiff’s condition, his utterance of obscenities and racial epithets is involuntary,” the court wrote in a 3-0 decision reversing a trial court’s denial of summary judgment. Petzold’s attorney vowed an appeal to the Michigan Supreme Court. (“Court Rules on Tourette Suit”, AP/FindLaw, Jul. 21) (text of decision, Petzold v. Borman’s Inc.) (via Jim Twu’s FindLaw Legal Grounds).
July 26-27 — “It isn’t about the money”. An Atlanta jury has awarded former stripper Vanessa Steele Inman $2.4 million in her suit against the organizers of the 1997 Miss Nude World International pageant as well as the Pink Pony, the strip club at which the week-long event was held. Ms. Inman said organizers rigged the balloting to favor a rival contestant and “blackballed her from nightclubs around the country owned by the Pink Pony’s owner, Jack Galardi”, to retaliate for her refusal to do lap dances on a tour bus, let herself be “auctioned off” to drunken golfers, or allow her breasts to be employed in conjunction with whipped cream in a manner not really suitable for description on a family website. The jury awarded her $835,000 in compensatory damages, in part to make up for the impairment of her earnings in the exotic dance field, plus $1.6 million in punitive damages. “It isn’t even about the money,” she said. “Now people believe what I had to say.” (Jim Dyer, “Former stripper awarded $2.4 M against pageant organizers”, Atlanta Journal- Constitution, Jul. 25) (more on litigation by strippers: May 23, Jan. 28). Update Apr. 17, 2004: Georgia Court of Appeals overturns verdict.
July 26-27 — “Power company discriminates against unemployed”. In New Zealand, the Human Rights Commission is telling an electricity supplier to amend its “discriminatory” policies regarding prospective customers who might have trouble paying their bills. “A woman complained that her application to become a customer was rejected because she was unemployed, did not have a credit card and did not own her own home.” The company has already agreed to cease asking applicants whether they are employed, but the commissioners say it has been “indirectly discriminating against unemployed people by requiring its customers to have a credit card, own their own home and have an income greater than $10,000 a year.” (“Stuff” (Independent Newspapers Ltd.), Jul. 26).
July 26-27 — Couple ordered to give son Ritalin. A family court judge in Albany County, N.Y. has ordered Michael and Jill Carroll to resume giving their 7-year-old son Ritalin, the controversial psychiatric drug. The couple, who reside in the town of Berne, had taken their son Kyle off the medication, which is used to treat attention deficit/hyperactivity disorder; they feared the drug was harming his appetite and sleep. An official at the Berne-Knox-Westerlo School District proceeded to inform on them to the county Department of Social Services, which filed child abuse charges against the couple on charges of medical neglect. The charges, which might have led to the son’s removal from the home, were dropped when they agreed before the judge to put Kyle back on the drug; they will, however, be allowed to seek a second opinion on whether the boy should get Ritalin and return to court to argue for the right to discontinue the drug at some future date. (Rick Carlin, “Court Orders Couple To Give Son Drug”, Albany Times-Union, July 19 (fee-based archive — search on “Ritalin” or other key words to find story)) (update — see Aug. 29-30).
July 24-25 — Update: drunken bicyclist out of luck. A Louisiana appeals court has thrown out a trial court’s $95,485 award against city hall to a drunken bicyclist who was injured when he ran a stop sign and collided with a police car responding to a call (see Dec. 1). Plaintiff Jerry Lawrence’s lawyer explained the verdict at the time by saying, “Drunks have some rights, too”. (Angela Rozas, “No cash for drunken bicyclist”, New Orleans Times-Picayune, May 20). Police chief Nick Congemi said one reason Lawrence got as far as he did in his suit was that the department hadn’t issued him a ticket at the time for bicycling while intoxicated. “We learned a lesson, too. Because he was injured so badly, we decided not to give him any citations. … we’re going to change our policies on that. Here on out, we’re going to issue citations, even if they’re injured.” More proof of the inspirational things litigation can accomplish! (via “Backstage at News of the Weird”, May 29)
July 24-25 — “Going after corporations through jury box”. Christian Science Monitor takes a look at what comes next in mass torts after the Florida tobacco verdict, which Lawrence Fineran of the National Association of Manufacturers calls “really scary”. Quotes this site’s editor, too (Kris Axtman, July 24).
July 24-25 — Welcome Wall Street Journal readers. In its Friday editorial on the sensational developments in the Coke discrimination case, the Journal suggested people learn more by visiting this site (if you’re here to do that, see July 21-23 and July 19-20; click through from the latter to the big article on the case in the Fulton County Daily Report). Thanks in no small part to the Journal, last week (and Friday in particular) saw this site set new traffic records. (“The Practice”, July 21) (requires online subscription).
July 24-25 — “Poll: majority disapprove of tobacco fine.” Gallup asked 1,063 adults their opinion of a Florida jury’s $145 billion punitive verdict against tobacco companies. 59 percent “disapprove”, 37 percent “approve” and 4 percent had “no opinion.” Asked who was predominantly to blame for smokers’ illnesses, 59 percent said smokers themselves “mostly” or “completely” were and 26 percent said tobacco companies were (20 percent “mostly”, 6 percent “completely”). Another 14 percent blamed the two equally. Disapproval of the award increased among older age groups and with political conservatism; the results are consistent with a 1994 poll on tobacco liability. In December the public was asked whether it agreed with the U.S. government’s view that gun manufacturers could rightly be held financially responsible for the costs of shootings; it said no by a 67 to 28 percent margin. (Carol Rosenberg, Miami Herald, July 19)
July 24-25 — Florida verdict: more editorial reaction. “Given the industry’s history of evasion and equivocation about the health risks of smoking, it is tempting to welcome as a comeuppance a Florida jury’s $144.8 billion judgment against six tobacco companies. The temptation should be resisted. The judgment is a disgrace to the American legal system and an affront to democracy…. These issues should be confronted by the people’s elected representatives. They should not be hijacked by the judicial process under the guise of a tort case.” (“Smoke signal: An anti-tobacco verdict mocks law and democracy”, Pittsburgh Post-Gazette, July 21). “Ridiculous … outrageous … A ruling that completely ignores personal responsibility is a joke.” (Cincinnati Enquirer). “The biggest damages here may be to the reputation of the legal system.” (Washington Post). “Monstrous … Now that they have taken an unwise gamble on their health, the Florida plaintiffs portray themselves as victims of Big Tobacco. … outlandish” (San Diego Union-Tribune). “Falls somewhere between confiscation and robbery” (Indianapolis Star). A “fantasy verdict” (Cincinnati Post/Scripps Howard). “The bottom line is that courtrooms are not the proper forums for setting public policy, and personal responsibility should not be dismissed out of hand. ” (Tampa Tribune). “Yuck…. [the] tendency to run from personal accountability is one of the least attractive of modern human characteristics. A lot has also been said about the wrongness — yes, the fundamental wrongness — of a system that makes billionaires of attorneys based on their ability to minimize the responsibility of their clients when a deep-pockets defendant is in the dock.” (Omaha World-Herald). “You don’t have to love tobacco companies to recognize the wrong that’s been going on in Florida for the past six years…. [a lawsuit] ran amok.” (Louisville Courier-Journal). “Ambitious and politically motivated lawyers are usurping decision- and policymaking that in a democracy is appropriately left to the voters and their representatives. Tyranny of the tort may be putting it too strongly — at least for now. But who knows who will be next on the trial lawyers’ hit list?” (Chicago Sun-Times). “Justice is not served … ridiculous.” (Wisconsin State Journal (Madison)). “Absurdly excessive … provides a further reminder that the national “settlement” between Big Tobacco and the states aimed at curbing lawsuits over smoking hasn’t resolved much of anything.” (Memphis Commercial Appeal). “‘This was never about money,’ the plaintiffs’ attorney said immediately after the verdict. Whooooo, boy.” (Des Moines Register). Newspapers that approved of the verdict included the New York Times, USA Today, Dallas Morning News, San Francisco Chronicle, Milwaukee Journal Sentinel, Bergen County (N.J.) Record, Palm Beach Post, Spokane Spokesman-Review, Buffalo News, and Charleston (W.V.) Gazette.
July 21-23 — Principal, school officials sued over Columbine massacre. Three families were already suing the Jefferson County sheriff’s office, the killers’ parents and others, and now they’ve added Principal Frank DeAngelis and other school officials as defendants. After all, the more different people you sue, the more justice will get done, right? (“Columbine principal sued by victims of massacre”, CNN/Reuters, Jul. 19). Update Nov. 30-Dec. 2, 2001: judge dismisses most counts against school and its officials, parents having settled earlier.
July 21-23 — Washington Times on lawyers. Reporter Frank J. Murray’s series examining the legal profession has been running all week with installments on lawyer image, the boom in pay, lack of teeth in the lawyer-discipline process and more (July 17-21).
July 21-23 — Complaint: recreated slave ship not handicap accessible. A group of disabled New Haven, Ct. residents is charging that the publicly funded schooner Amistad, a traveling historical exhibit, is not accessible to wheelchairs as required by the Americans with Disabilities Act. The Amistad was the scene of an important slave revolt in 1839-1842 and its recreated version helps evoke the overcrowding and other inhumane conditions of the slave trade. (“Amistad Raises Concerns About Handicap Access”, AP/Hartford Courant (CtNow.com), July 18).
July 21-23 — Class-action lawyers to Coke clients: you’re fired. As we mentioned yesterday, there have been sensational new developments in the Coca-Cola Co. bias-suit saga, following an episode in which a plaintiff lingered on the line after a conference call and heard what his lawyers told each other when they thought they were among themselves (see July 19-20). One reader writes to say he found it “an interesting commentary on class action litigation. The plaintiff becomes dissatisfied with the way his attorneys are handling his law case. So the client fires the attorney, right? Wrong. The attorney fires the client and continues the case with other plaintiffs. What’s wrong with this picture?”
July 21-23 — When sued, be sure to respond. A “default judgment” is what a plaintiff can obtain when a defendant fails to show up in court and contest a suit, and it’s often very bad news indeed for the defendant, as in a case out of New Brunswick, N.J., where a judge has ordered Wal-Mart “to pay more than $2 million to a former cashier who said he was harassed and fired after a boss learned he was undergoing a male-to-female sex change.” Ricky Bourdouvales, 27, says his troubles began when he confided to a manager that he was in the middle of crossing genders, though when he was fired in January he was told it was because of discrepancies with his cash register count. The giant retailer says it will ask the judge to overturn the award, saying it was aware that a document had been filed in May but did not realize its nature. “We were totally unaware of the lawsuit, and we want to have the opportunity to defend ourselves,” said its spokesman. (“Judge Orders Wal-Mart to Pay Fired Transsexual $2 Million in Bias Case”. AP/FindLaw, July 18) (more on suits against Wal-Mart: July 7-9). Update Sept. 6-7: judge grants retrial.
August 31 — Death by mainstreaming. Had safety been the primary concern, Joshua Smurphat of Sunnyvale, Calif., 12 years old and mentally retarded, would probably not have been allowed onto the Drop Zone Stunt Tower ride from which he fell to his death August 22 at the Great America amusement park in Santa Clara. Mechanical failure has been ruled out, and ride designers say that once patrons have been strapped in, it’s physically impossible for them to fall out — provided they obey instructions to remain in their original posture. Even if Joshua’s harness was insecurely fastened, a possibility investigators are still checking into, an ordinary 12-year-old would be apt to notice the problem, but as Jeffrey Lewis, a director of the local United Cerebral Palsy organization, cautions: “in many cases, a consequence of mental retardation is the lack of danger awareness.”
However, both the federal Americans with Disabilities Act (ADA) and California disabled-rights law prohibit amusement parks from “discriminating” against persons with mental incapacities by turning them away from rides, or attaching special preconditions to their participation, so long as they meet otherwise applicable requirements such as height and chronological age. “Certainly they couldn’t say that somebody who had a cognitive disability couldn’t participate in a ride,” Sacramento disabled-rights attorney Eric Gelber told the San Jose Mercury-News, apparently well pleased with that result. “We take our obligation to accommodate all of our guests, regardless of disability, very seriously,” said a park spokesman, in what might serve as an epitaph for the unfortunate young man. (Aug. 26; related follow-up, Aug. 28; links now dead).
August 31 — New Overlawyered.com page: Unsafe on any docket. “Crashworthiness” cases have made big headlines this summer, with two California juries voting awards of $5 billion against GM (Chevy Malibu) and $290 million against Ford (Bronco) and the Massachusetts high court upholding a $19.2 million verdict against Chrysler for a Plymouth minivan accident that the plaintiffs blamed on brake locking. We’ve accordingly devoted the ninth in our series of topical surveys to the area, assembling some historical background and links about the Audi 5000 and its supposed penchant for sudden acceleration, the 1993 episode in which Dateline NBC producers got caught practicing what you might call sure-fire journalism, and similar controversies, not neglecting the case that litigation advocates would much prefer to talk about, that of the Ford Pinto.
August 31 — The “we sue Microsoft” business plan. A Bridgeport, Connecticut jury on July 17 returned a verdict in favor of Microsoft in a private antitrust suit brought by a small company named Bristol Technologies. Interviews afterward indicated that jurors had been angered by internal Bristol emails and memos revealing the smaller company’s not-exactly-reluctant attitude toward litigation. A May 1998 message from a company director to Bristol chief executive Keith Blackwell referred to the approaching lawsuit as “the ‘We sue Microsoft for money’ business plan.” Meanwhile, “[a] memo from a Manhattan public relations firm hired by Bristol described a $75,000-plus ‘David v. Goliath Strategic Communications Game Plan’ to attack Microsoft in the press,” reports Karen Donovan in the August 2 National Law Journal. “Then came an e-mail from Keith’s wife, Jean, days after the suit was filed in August. Its subject: ‘Extend the Story, Increase the Pain.'” “The whole scenario was kind of disgusting,” said juror Robert LaBella of Stamford (followup — Thomas Scheffey, “Microsoft, Bristol and Money”, Connecticut Law Tribune, Aug. 23). Update Nov. 30, 2000: judge increases verdict to $1 million, Bristol requests new trial.
August 30 — Do as we say (I). Latest employer to face a big class action under the antediluvian Fair Labor Standards Act for not paying overtime to some of its highly responsible employees (lawyers, in this case): the U.S. Department of Justice. (San Jose Mercury-News, Aug. 25; AP/Mpls. Star-Tribune, Aug. 26). Don’t miss the Detroit News editorial (Aug. 28). Update Jul. 18, 2004: court rejects case.
August 30 — Do as we say (II): gun-suit hypocrisy in Detroit. The Motor City’s police chief confirmed last week that just before suing private gun makers for allegedly not doing enough to curb distribution of their wares, the city itself sold an astounding 13-plus tons of used police weapons to a private dealer. That puts Detroit ahead of even New Orleans and Boston (see Aug. 25 entry, below), in the tonnage and perhaps also the hypocrisy competition when it comes to weapons distribution. Should the city be liable each time one of those surplus guns gets used for a criminal or suicidal purpose? (Detroit Free Press, Aug. 25).
Since its filing, letters to the editor from local residents have flayed Detroit’s gun suit for “holding an innocent party responsible for someone else’s criminal activity” and have suggested that, if the city is going to endorse that sort of logic, “victims of crime in the city of Detroit should file suit against the city for its failure to protect those in the city” (Free Press letters, Jan. 8, May 1). More than one letter-writer has suggested, by way of trying to come up with a reduction to absurdity, that the logical culmination would be to hold Detroit’s own hometown industry, the automakers, liable for the activities of drunk drivers. But as July’s Chevy Malibu verdict shows (see August 27, below, and July 10) that’s exactly what the trial lawyers are already doing with considerable success. It’s not easy to think up a reduction to absurdity of our litigation system that isn’t already well on its way to being implemented in all seriousness.
August 30 — “Tort reform spurs lawsuit filings”. Alabama courthouses work overtime as lawyers file suits in droves to beat the deadline for the application of legislated limits to punitive damages and forum-shopping (Huntsville Times, Aug. 24).
August 30 — Taco Bell not liable for Ganges purification pilgrimage. A judge in Lancaster County, Nebraska has declined to order the Taco Bell restaurant chain to pay for trips to India for Siva Rama Krishna Valluru and his wife, Sailaja. Devout vegetarians as part of their practice of Hinduism, the couple was dismayed to discover that a rice side dish they had been eating contained meat. They had argued that swallowing flesh constituted a sin the expiation of which required them to bathe in the Ganges River as part of a purification ritual, but Judge Jean Lovell said such expenses did not count as reasonably foreseeable (Lincoln, Neb. Journal-Star, Aug. 27; AP/Bergen County, N.J. Record, Aug. 28).
August 30 — “Scholar’s shift in thinking angers liberals”. Harvard’s Laurence Tribe upsets colleagues by concluding that the Constitution’s Second Amendment may not, after all, be a meaningless inkblot. Instead he “posits that it includes an individual right, ‘admittedly of uncertain scope,’ to ‘possess and use firearms in the defense of themselves and their homes.” Heresy! (Tony Mauro, USA Today, Aug. 27).
August 28-29 — Speech police go after opinion articles, editorial cartoons. Columnist Stephen Chapman writes that the faculty union at Daley College was recently hauled before the city of Chicago’s Commission on Human Relations, which has the power to levy fines and issue injunctions. Its sin? Publishing an article critical of affirmative action in its newsletter. The college’s Board of Trustees, which filed the complaint, accused the author of the offending piece, Prof. James Bell, of jeopardizing “the rights of students and staff at Daley to equal access” by “mak[ing] students uncomfortable in an institution where comfort is essential for learning.” In June, after two years, the commission finally dismissed the complaint on the grounds that Daley College was not a “public accommodation”. Also in June, however, Chapman reports, the Department of Human Rights in St. Paul, Minn., filed a complaint against the local newspaper accusing it of racial discrimination for having run an editorial cartoon on college athletics that offended many local blacks. After a public outcry, it backed off (St. Paul Pioneer Press, June 10; AP/Freedom Forum, Jun. 23). Chapman quotes UCLA law professor Eugene Volokh warning that such complaints are only too logical a consequence of today’s “hostile-environment” law, a topic on which Volokh maintains a highly informative website. (column link now dead)
August 28-29 — Weekend reading. Pixels to take out on the canoe or Airstream:
* What goes around comes around: the estate of the famously litigious inventor Jerome Lemelson gets hit with a suit from his former employer saying that it actually owns the rights to many of his patents. Critics accused the late Mr. Lemelson of specializing in “submarine” patents whose applications would lie dormant in the Patent Office for years, then suddenly surface when other companies had made progress on the technology in question. (Victoria Slind-Flor, National Law Journal, August 24; see also lemelsonpatents.com, a website put up by lawyers who’ve tangled with the Lemelson estate.)
* “Why, why, would the American Bar Association honor a scandalous leader who has just been found in contempt of court, and whose disbarment is being considered even now?” Or Webster Hubbell, convicted of stealing from his clients? “What kind of advertisement for the profession of law is that?…[Y]ou can’t embarrass an honest profession. Seduced by the glitz of high office and maybe its own partisan prejudices, the bar got what it deserved” — Paul Greenberg, Arkansas Democrat-Gazette (full column). Meanwhile, Judge Richard Posner’s An Affair of State: The Investigation, Impeachment, and Trial of President Clinton sounds like the book to read in the coming month, to judge from reviews by Stuart Taylor Jr. (National Journal) and James Stewart (New York Observer).
* Time for social conservatives to get off their coercive, government-infatuated Culture War kick: “The problem with cultural conservatism is that it despairs not of culture, but humanity. Its votaries consider us all a bunch of suggestible imbeciles, and they view capitalism as a scam…As it turns out, though, people are pretty reasonable….We’re not in danger of ‘an accelerating descent into barbarism and the destruction, sooner or later, of free society itself.’ …Censorship merely would bollix things up by inviting censors to abuse power and everyone else to become dependent and lazy.” — columnist and Fox News host Tony Snow (link now dead).
August 27 — L.A. judge cuts award against GM to $1.2 billion. From the automaker’s motion for a new trial, we finally learn what the other driver’s name was (Moreno), how drunk he was (“.20 several hours later”), and what happened after the plaintiff’s lawyers succeeded in getting the judge to exclude from the trial any mention of Moreno’s intoxication or the fact that he’d been convicted and imprisoned for felony drunk driving over this crash (“Having moved to exclude it, plaintiffs told the jury, falsely, that his guilt consisted of ‘five seconds of bad judgment’,” whereupon the jury allocated to Moreno only 5 percent of the guilt for the injuries) (GM statement) (earlier Overlawyered.com commentary)(auto-safety litigation generally).
Plaintiffs also successfully fought to exclude evidence that the federal government’s real-world highway statistics show the Malibu among the safest cars of its time in crashes, and that testing had raised safety concerns about the alternate placement of the gas tank sought by the plaintiffs. Reuters now quotes GM as saying that 98 percent of American cars in the 1970s had their gas tanks in the same position as the Malibu’s. (“Judge Tells GM To Pay Record $1.2 Bln Liability”, link now dead). The company also says (Wall Street Journal news report today by Frederic Biddle, online subscribers only) that “there was absolutely no difference in cost” between the two designs.
While Reuters (link now dead) fairly summarizes many of the above facts, you’re in trouble if your local paper relies on the Associated Press. AP correspondent David Germain’s dispatches make it hard to figure out why GM thinks it has a case, merely depicting the automaker as trying to “be let off the hook” (link now dead) and quoting plaintiff’s attorney Brian Panish as saying, of the gas tanks, that “[t]he only people in the whole world who think they’re safe are General Motors and their lawyers” (link now dead), a temptingly checkable assertion left unchecked. Incidentally, Yahoo features Overlawyered.com‘s July 10 commentary as a resource in its Full Coverage feature on the case.
August 27 — Best little forum-shopping in Texas. Two more stories illustrate why lawyers appreciate the Lone Star State for a kind of shopping not found at Neiman-Marcus. Mark Ballard in the National Law Journal relates how plaintiffs have brought a long succession of high-stakes cases to sleepy Texarkana, Texas “for only one reason: Judge David Folsom. The 52-year-old Clinton appointee is the only federal judge in Texarkana. Thus, every suit filed here goes before him.” Find a local resident or institution to stand in as your named plaintiff, and you’re home free: Folsom says he can’t recall ever granting a change of venue, though they’re often requested by defendants who wonder why they’ve been dragged to rural northeast Texas when neither they nor the subject matter of the litigation have any particular connection to that part of the world. An old pal of Bill Clinton’s from Arkansas days, Folsom presided over the $17.3 billion settlement of Texas’s Medicaid class action against the tobacco industry. That case certainly pepped up the local economy: the Texarkana Chamber of Commerce estimates that tobacco lawyers and their staffs spent $6.1 million during the proceedings. (Aug. 26).
Meanwhile, lawyers have obtained a $30 million settlement in a Mexican bus-crash case, much more than what such a case would have brought if filed in Mexico, because they were able to find a Texas judge willing to impose not only a Texas forum but also Texas law. (To get some idea of the asymmetries involved, imagine a Mexican court applying that country’s law to a Texas accident.) AP quotes the plaintiff’s lawyer as openly boasting of having foiled the Mexican legal system’s duly considered policy of not handing out money as readily as ours does. The presumption of those other countries, thinking they can apply their law to accidents on their roads! (AP/Washington Post, Aug. 16; Texas Lawyer, Aug. 23).
August 27 — Company to settle 36,000-plus Norplant suits. The Dallas Morning News reports that American Home Products has agreed to pay what could exceed $50 million to buy partial repose (some suits will remain) from lawyers suing it over the silicone-implant contraceptive. The per-claimant sums aren’t very large ($1,500), but nuisance value multiplied by 36,000 gets into substantial money. For more details, see our August 11 commentary and today’s lead editorial in the Wall Street Journal (online to subscribers only). (Dallas Morning News, Aug. 26; Yahoo/Reuters).
August 26 — Playing rough in Alabama. Last week a Mobile grand jury indicted former Alabama Trial Lawyers Association president Garve Ivey Jr., of Jasper, and a private investigator who has worked with Ivey, Wes Chappell, on charges of bribery, witness tampering and criminal defamation. The charges arise from an episode last year in which a former prostitute named Melissa Myers stepped forward to accuse Republican lieutenant governor candidate Steve Windom of raping her. Windom was elected anyway, Myers’s story soon fell apart, and she began cooperating with authorities looking into the question of whether she had been backed by others in making the allegations. Windom had come under heavy fire from organized trial lawyers for having taken a leading role in support of tort reform; in Alabama, as in other Southern states, the lieutenant governor’s position is a powerful one in blocking or approving legislation. Ivey and Chappell deny the charges and say they look forward to their day in court, and Ivey has sued Windom personally as well: “We are filing our lawsuit in Walker County, my home, not Mobile.” (“Ivey refuses to testify before grand jury”, AP/Daily Mountain Eagle (Jasper, Al.), Oct. 21, 1998; John M. Sandlin, “Ivey sues Windom, indictment reported in Mobile”, Daily Mountain Eagle, Aug. 17; AP/Washington Post, Aug. 19) (see update Sept. 1). Update: a jury in June 2000 acquitted Chappell, acquitted Ivey of the felony bribery charge, and convicted Ivey of the two misdemeanor counts of witness tampering and criminal defamation; appeal planned (see Aug. 31, 2000). Further update: in July 2001 the Alabama Supreme Court reversed these convictions and ordered Ivey acquitted of the charges (see July 7, 2001).
August 26 — Rolling the dice. With Ralph Nader on the warpath against the gambling industry, can the lawsuits be far behind? Wait a minute — here they are! David Rovella in the August 2 National Law Journal reports that class action lawyers in Alabama and Wisconsin have filed suit against credit card companies for allowing their customers to run up debts at offshore Internet casinos. David T. Maple of Birmingham, Ala. lost $49.95 at one such game site but stands to recover a lot more than that as “name plaintiff”, which might mean he is off to a profitable betting career after all. Lawyers say they are hoping to recover billions of dollars in refunds, interest “and even damages” (full story). In a policy analysis for the Cato Institute, Chapman University School of Law assistant professor Tom W. Bell calls Internet gambling “Popular, Inexorable, and (Eventually) Legal“.
August 26 — New feature debuts on Overlawyered.com site. Today marks the launch of our fledgling library of online articles, originally published elsewhere and now reprinted by permission of their authors, discussing some of the problems of the U.S. legal system. The opening line-up includes 28 articles by Michael Fumento, Peter Huber, Jonathan Rauch and Overlawyered.com editor Walter Olson on topics ranging from employment law to medical malpractice litigation, from toxic-tort scares to free speech. We expect to add more authors and articles in the weeks ahead.
August 25 — Gun-suit hypocrisy, Boston style. Last week officials admitted that they failed to follow their own procedures when they disposed of surplus police guns with no strings attached, which leaves the city resembling a Rum-denouncing cleric caught bootlegging on the side, given that it’s suing gun makers for not making an effort to control what happened after guns left their hands (see July 14). “Somebody dropped the ball,” acknowledged Police Commissioner Paul Evans. Why not just end the embarrassment by dropping the suit? (Boston Globe, Aug. 17; link now dead)
August 25 — Calif. state bar improperly spent dues on politicking. The Pacific Legal Foundation had brought suit on behalf of 40 members of the bar in the Golden State. In the 1990 case of Keller v. State Bar, the U.S. Supreme Court unanimously ruled that state bars with compulsory membership must offer a refund to members of moneys spent on politicking to which they object. The California bar proceeded to announce that of the $450.00 dues it charged in 1989, a bare $3.00 was spent on ideological and political activities, a figure it arrived at by designating much of its Washington and Sacramento legislative effort as merely one of “advising” lawmakers which bills to pass. We don’t think so, rules Sacramento County superior court judge Morrison England Jr. after eight years of litigation (AP/Freedom Forum; Aug. 20).
August 25 — Lawyers grabbing too much of Swiss bank settlement, charge Holocaust survivors. Yes, it’s one of the sadder headlines of 1999, and no, it’s not one of the more surprising to many who’ve followed the issue. “Gizella Weisshaus, one of the first to sue the banks, said she no longer wanted to be associated with the lawsuit because it would leave too little money for survivors.” (AP: Washington Post, CNN (links now dead)).
August 25 — “Employee lawsuits increasing”. Survey of 353 companies by Society for Human Resource Management and law firm of Jackson Lewis finds slightly more than half have faced employment-related lawsuits, with nine of ten suits coming from former employees. “Another 37 percent of the companies responding to the survey were sued by a current employee, while 8 percent were sued by unsuccessful candidates for employment.” Partner George Wilkins of Cincinnati’s Dinsmore & Shohl says labor and employment is the fastest growing area at his firm. (John Eckberg, Cincinnati Enquirer, August 22; SHRM June 27 press release)
August 24 — The dream verdict. On July 12, three days after a Los Angeles jury voted $5 billion against GM in the Malibu case, a jury in Ceres, Ca. voted $290 million against Ford in a case where several members of Juan Romo’s family had been killed in a rollover accident in their Ford Bronco. Ford’s motion for a new trial, filed last week, sheds light on how such cases are tried in today’s American courtroom.
Plaintiff’s counsel had railed against the “giant,” “wealthy” Ford with its “lawyers back east in Dearborn.” (“I talked about this case was about…corporate greed and arrogance…It’s also about this. It’s about Mrs. Romo’s purse….She didn’t have furniture for crying out loud, and she’s giving money to the church and she’s putting it [in her purse] to provide for the education of her children.” Damages? “You’ve got to say a number that gets on the front page of every newspaper in the country.”
How to deal with the inconvenient circumstance that the Bronco design more than exceeded the standards set by the National Highway Traffic Safety Administration? Keep hammering away at the idea that federal standard-setting (presumably in contrast to jury persuasion) is a “political” process (“that political report called the Federal Register”; “NHTSA has…political appointees”; “You got a reading from a Federal Register as it goes out to the politicians.”)
California law allows affidavits to be taken from jurors after a verdict. According to Ford’s motion, these affidavits revealed that one of the jurors acknowledged she had prejudged the case and told fellow jurors they did not have to follow legal instructions because the case allowed them to “save the babies”. Of one attorney, she said he “really was trying to do something good, and that what he said should be considered as evidence.” And, several jurors testified, the same juror told them at great length about a gruesomely detailed dream she’d had — which she described, not without mystical overtones, as an “omen” — in which a Bronco repeatedly rolled over and killed all the jurors’ children, while the company’s line-up of attorneys and witnesses — armed with guns, no less — “stood by taunting the jurors by chanting ‘Where’s the proof, where’s the proof?’”
The juror affidavits also suggested that the panel was strongly influenced by crash exposés that had aired on “60 Minutes” and similar programs, attacking other Ford models that trial lawyers were suing over, which a second juror saw as proving that Ford had acted in bad faith in such cases. One of these shows, watched by more than one juror, was aired by CBS on May 19, only weeks before the verdict, and included material prejudicial to Ford that the court had excluded from evidence in the Romo case. The apparent influence of the TV coverage helps explain why trial lawyers have gone to such extraordinary lengths over the years, behind the scenes, to shape the coverage on such shows.
After the trial, Ford says, while it was in the process of interviewing jurors to gather affidavits in connection with this new trial motion, plaintiff’s lawyer Larry Drivon was thoughtful enough to send the jurors a free gift, consisting of his own book inveighing against big business (“The Civil War on Consumer Rights“), which happened to feature a whole chapter devoted to attacking none other than the Ford Motor Company. Included was a note and personal inscription to the jurors: “for all us who care.” Update Aug. 27, 2002: appeals court reinstates verdict, Ford seeks review by California high court. More developments; further update Nov. 26, 2003 (appeals court reduces verdict in light of U.S. Supreme Court guidance).
August 24 — Beyond the hired-gun syndrome. Good op-ed in Sunday’s (8/22) Washington Post by David L. Faigman of Hastings College of the Law discussing the Court Appointed Scientific Experts project of the American Association for the Advancement of Science (AAAS). Faigman’s book “Legal Alchemy: The Use and Misuse of Science in the Law” will be published in October by W.H. Freeman & Co.
August 23 — Fertilizer manufacturers not liable for World Trade Center bombing. The Third Circuit U.S. Court of Appeals has upheld the dismissal of a suit by the Port Authority of New York and New Jersey, which had demanded that manufacturers be made to pay damages for the 1993 terrorist bombing of the twin Manhattan towers on the grounds that the misuse of their wares to make fertilizer-and-fuel-oil bombs was “objectively foreseeable”. The appeals court found the lower court had correctly ruled that the manufacturers’ conduct could never be the “proximate cause” of the bombing: “The terrorists’ actions were superseding and intervening events breaking the chain of causation,” writes Judge Jane Roth. If applied consistently, such logic could be helpful to other manufacturers sued over criminal misuse of their products, such as gun makers. Also rejected was a theory that the fertilizer companies were negligent for not having instituted “know-your-customer” controls on buyers of their product — again, an issue that finds its parallel in the gun litigation. (Legal Intelligencer, Aug. 19) A press communiqué (link now dead) from the clearly bewildered government of Norway describes how two of that country’s leading industrial companies became defendants in the World Trade Center litigation, referring to “the Americans’ so-called product liability law”.
August 23 — You may already not be a winner. A Canadian court has turned away prisoner Allen Crawshaw’s lawsuit asking $10,000 of Corrections Canada for failing to mail his entry last year to the Reader’s Digest sweepstakes, which had a first prize of $1.4 million. Prison officials conceded they should have mailed the entry but denied that the loss of a chance of winning should entitle him to damages: “Did you ever see the odds of those?” said spokesman Dennis Finlay. Crawshaw, a former shop steward for the United Food and Commercial Workers at a British Columbia food plant, was convicted in 1994 of killing his boss after being angered by a one-day suspension over heated comments he’d made criticizing management; Crawshaw was “known [locally] as a peace activist”. (National Post, Aug. 11)
August 23 — Political Site of the Day. We’re pleased to announce that Overlawyered.com is today’s Political Site of the Day, an award service that has been picking daily sites for more than four years, practically as long as there’s been an Internet. A stroll through PSoD’s library of past sites is a good way to appreciate the spectacular diversity of the Net: within the space of two weeks we ran into the home sites of the Serbian/Yugoslavian royal family, PostalWatch (a watchdog group on behalf of those regulated by the Postal Service), How To Win a High School Election (“It doesn’t matter whether you’re popular or not…”), and Libertarian Rock, which will send you free stickers to protest curfew laws.
August 23 — “Beating up on ‘deadbeat dads’.” “Those who decry judicial tyranny and family destruction should pay more attention to family courts, for they are the arm of the state that routinely reaches farthest into the private lives of individuals and families,” notes Howard University political scientist Stephen Baskerville in an American Spectator article sharply correcting the usual let’s-lynch-’em view of “deadbeat dads”. The night after Bobby Sherrill came home from spending five months as an Iraqi hostage, the Washington Times reported, the sheriff was there to arrest him for not paying child support during his captivity. A Texas janitor wrongfully convicted of murder and then exonerated after ten years on death row was presented on release with a $50,000 bill for child support he didn’t pay while in prison.
Officials push through ever-more-punitive regulations against delinquent pops, then hop over to for-profit private collection firms, hired by their former agencies, that grow fat on the resulting business. It’s hard to go along with Baskerville in dubbing the deadbeat-dads problem a mere “myth”, but hard not to join him in worrying about “mass incarcerations without trial, charge, or counsel; an apparat that has systematized the invasion of private homes and the confiscation of children to a bureaucratic routine; [and] political leaders [who use] their public office as a platform to vilify private citizens who have been convicted of nothing and who have no opportunity to reply” (full story).
August 21-22 — The Marie Antoinette school of public relations. The June issue of George featured a lavish photo spread (“Puff Daddies”) of six lawyers who “have raked in more than $5 billion for their firms from tobacco litigation“. The backdrops weren’t the usual stuffy law libraries, either. They included the racing boat, conspicuously labeled “Gunsmoke”, of Pascagoula’s Richard Scruggs, brother-in-law of Senate majority leader Trent Lott (more than $1 billion in fees for representing Mississippi and other states); the twenty-horse equestrian estate of Charleston’s Joseph Rice (somewhere between $1 billion and $10 billion); the private putting green on the Pensacola estate of Fred Levin ($325 million); a foundation endowed by politically ambitious Michael Ciresi of Minnesota ($440 million; “some of the fees are excessive”, he cheerfully agrees); and the opulent bathtub where South Florida’s Robert Montgomery ($678 million), posed, fully clothed, under what the Palm Beach Post called “English artist David Jagger’s painting of a naked woman”. (Montgomery describes as “outrageous” Florida’s move to accept an $11.3 billion settlement without forking over a full one-quarter of it to lawyers as agreed). An ostensibly less material note was struck by Seattle’s Steve Berman (roughly $2 billion), who previously made it big filing shareholder class actions, and who says, “I got the notion in the ’60s that you can protest by growing your hair long or you can get trained in the methods of the establishment and use their own tools to beat them. There’s nothing better than beating them at their own game.”
Addressing an Americans for Tax Reform audience earlier this summer, Wall Street Journal editorialist John Fund said he marveled at the willingness of the legal tycoons to rub their critics’ noses in their taxpayer-leveraged success by cooperating in such displays. “Even the robber barons in the Nineteenth Century knew better than to do it that way. Is it that they don’t have anyone giving them p.r. advice? Or do they just think at this point they’re invulnerable?”
August 21-22 — Weekend reading. Pixels to take to the cabin or island:
* Next on the identity-politics agenda: “Partly due to the flurry of judicial and legislative activity pursuant to the Americans With Disabilities Act of 1990, disability studies, once an arcane field of literary theory, has begun to attract attention from both the media and the academy,” reports Norah Vincent in the August 18 Salon. Brown University professor Carol Poore asserts that “disability is actually preferable to ability in that able-bodiedness ‘is the precondition for being a tool of the ruling class.'” Some in the disabilities movement “maintain that, even if they were presented with a cure for their disabilities, they wouldn’t take it” (full story).
* Overlawyered.com‘s editor devotes his latest Reason column to the legal background of the Supreme Court’s Davis v. Monroe decision in May, the one that allowed schools and universities to be sued for not remedying “student-on-student” harassment. No federal law in fact creates a right to sue over sexual harassment in education; it’s an “implied private right of action”, which means basically that the courts get to make it up as they go along. (“Title IX’s Invisible Ink“, August/September).
* From the north comes word that the Canadian Broadcasting Standards Council has declined to take action against Global Television for its July 1998 broadcast of a 45-year-old Bugs Bunny cartoon. A feminist complainant had hauled Global before the tribunal over an episode of the “Bugs Bunny and Tweety” show, alleging that the wascally wabbit had uttered remarks demeaning to women (National Post, Fox News/Reuters, Boston Globe (links now dead))
August 20 — The long march through the courtrooms. From Counterpunch.org, the webzine of left-wingers Alexander Cockburn and Jeffrey St. Clair: “Hardly had she [Hillary Rodham] raised her foot to step over the threshold of radicalism than she turned back. She declined to go with the SNCC [Student Non-Violent Coordinating Committee], turned down an offer to work with Saul Alinsky as a community organizer in Chicago. Anderson quotes her political science prof at Wellesley, Alan Schecter, as saying that by the late 1960s his pupil had decided that the best radical strategy was to ‘”use the legal system” as an agent of change.’ She wasn’t alone in that calculation. The long march of the left through the courtrooms was under way: the world would become a better place, courtesy of courtroom briefs, complaints and class action suits.
“And so what we have seen, across the last three decades, is the left vanishing into the quicksands of regulation. All society’s problems could be fixed by a statute, a rule, a waiver, a program. Much of the antiwar left vanished into the consumer movement, the environmental movement and legal fixitry. The mass movement died and litigation — often successful — flourished amid the ruins” (“The First Lady Syndrome”, August 11 — full story)
August 20 — “Three insurers sued for $100 million”. $300 million, actually, since a Prince George’s County, Maryland court is being asked to mulct Allstate, GEICO and State Farm nine digits’ worth apiece for the offense of applying managed-care-style guidelines to limit policyholders’ personal medical claims after auto mishaps. This AP story commits a few of the usual journalistic sins: 1) it signals no awareness that the dollar demands in such cases can be arbitrarily picked for shock/news value, our legal system putting no price tag on exaggeration; 2) it ignores the probable role of the lawyers as parties-in-interest (though it does report that many of the individual policyholders’ claims are for less than $100); 3) it finesses the purely circular process by which anyone deems such filings newsworthy (the seven named customers would normally have had trouble getting even back-page local coverage, but instead scored big national headlines. Why? Because their lawyers asserted a right to speak for a large class of policyholders nationwide. Why would a court accord these particular lawyers that right? Well, they did get all this national publicity…) Best detail: “All of the plaintiffs have maintained their coverage with the companies despite the disputes.” Mad enough to sue, in other words, but not mad enough to switch companies (Yahoo/AP; link now dead).
August 20 — New Overlawyered.com pages: tobacco tycoons, litigation in the workplace. Two more newsworthy topics get their own subpages, bringing the number of topical pages to eight. Seven weeks old, this site has now served more than 15,000 pages, with our traffic rate nearly doubling this month from last. Thanks!
August 19 — Plus extra damages for having argued with us. In yesterday’s Washington Post, David Ignatius calls global warming a potential “plaintiff’s lawyer’s dream”, quoting former deputy energy secretary Lynn Coleman as saying that if doomsayers’ predictions prove accurate, lawyers could file trillions of dollars in claims against utilities, oil companies and others for weather-related effects. Significantly, Ignatius suggests (“the best analogy may be tobacco”) that future juries will be angered by some companies’ current boldness in debating the issue by way of counter-studies and newspaper ads. Apparently one “lesson of tobacco” is that it’s henceforth going to count as an independently punishable offense to defend one’s business in public controversy (link now dead).
August 19 — Click here to sue! Seattle-based Bendich, Stobaugh and Strong, P.C. specializes in employee class actions arguing that temp, freelance and independent-contractor employees were really “misclassified” and deserve retroactive raises and benefits, no matter what the two sides may have thought they were bargaining for at the time. Taking advantage of the Web, the firm makes it really easy to join its suits against Microsoft (see also Jan. 11, 2000 commentary), Arco, King County (Seattle) and Los Angeles County.
August 19 — NAACP’s “ludicrous” anti-gun suit. Ninety percent of murders of blacks are committed by other blacks, David Horowitz observes, but now litigation offers a handy way to blame the toll on distant white-owned gunmakers, advancing “a fantasy in which African-Americans are no longer responsible for anything negative they do, even to themselves”. (Salon, August 16 — full column).
August 19 — Another scare starts to fizzle. “For three years now, organizations ranging from environmental groups to Consumer Reports have been proclaiming the existence of a deadly wave of endocrine disrupters that cause cancer, infertility, and personality abnormalities,” writes Gregg Easterbrook in the August 30 New Republic. Now the National Academy of Sciences has studied the issue of environmental residues of these synthetic hormones and found much less than meets the eye in the scare reports. (full article). Score another one for skeptics Mike Fumento and Ron Bailey, as well as for the New York Times‘s much-hatcheted Gina Kolata, whose refusal to hype the endocrine-disrupter scare was a chief count in the campaign against her typified by Mark Dowie’s article in the July 6, 1998 Nation.
August 18 — Undislodgeable educators. Tenure laws make it hard in many states to remove even a badly underperforming teacher from the classroom, but hopes for reform rose when Bob Chase became president of the National Education Association with an agenda that included “peer review” methods like those pioneered by NEA’s Columbus, Ohio affiliate. “The goal of peer review is to help people succeed,” Chase has said. “But it could also speed up the process of dismissing a teacher who is not successful….We know that it sometimes takes five or six years to get rid of a teacher, and that is too long.”
But can peer review work if it’s just an overlay onto, rather than a substitute for, the laggard teacher’s right to challenge a dismissal by every current legal means? That question is posed by the case of Ivy Featherstone, a 25-year-veteran teacher in the Columbus schools whom administrators often observed reading the paper in class with his feet up on the desk while students snoozed. Two years of intensively applied peer review, followed by 16 days of hearings, led to the conclusion that Featherstone should be given a “negative release”, and he was suspended without pay. Duration of the process up to that point: three years, and it turned out things were just getting started. Featherstone was soon off to federal court to charge that the dismissal was racially discriminatory, and it’s taken four more years for a judge to dismiss that case — not on the merits, but on the grounds that Featherstone failed to take the procedural steps needed to preserve his rights to sue. (If he had, presumably, the case might still be in progress). The case gets written up in this week’s communiqué (week of August 16) from Mike Antonucci’s invaluable Education Intelligence Agency; subscriptions are free, and highly recommended to anyone with an interest in how schools work.
August 18 — Ohio case fallout. In a blistering editorial (no longer online), the Columbus Dispatch calls the state high court’s striking down of tort reform (see item for August 17, below) “an act of arrogance and an affront to the doctrine of separation of powers”. Meanwhile, furious business groups vow to make the next set of judicial elections a referendum on the court’s activism. Though with a nominal Republican majority, “the current seven-member tribunal has gained a reputation as a ‘plaintiffs’ court.’ Two Republican justices, Andrew Douglas and Paul E. Pfeifer, have become frequent swing voters with decisions endearing them to labor unions and trial lawyers.” (Joe Hallett, Columbus Dispatch, Aug. 17).
August 18 — “Dieters still want fen-phen”. The hazards of the drug are frightening; so are those of obesity, and Cincinnati Enquirer reporter Susan Vela found many local residents wishing the system still permitted them a choice. “It calmed the monster in my body,” said one woman who was able to get down to 136 on fen-phen but has gone up to 210 without it. “Who do I sue to get it back on the market? I’m suffering without it.” (Aug. 16; full story). An August 14 Washington Post editorial calls the recent Texas $23 million award against the drug’s manufacturer “a terrible signal, almost guaranteed to bring thousands more plaintiffs to court on flimsy evidence”.
August 17 — Ohio high court says forget tort reform; should unionists be cheering? By a one-vote margin, the Ohio Supreme Court basically notifies the state’s lawmakers that it won’t tolerate any attempts by them to say how the state’s liability law should operate. “Ohio legislators might as well shut up shop and go home,” said Linda Woggon of the Ohio Chamber of Commerce. The decision is the 90th in which a state court has invalidated efforts to curb litigation, according to sources at the American Tort Reform Association, which keeps the dismal count. (Columbus Dispatch (link now dead), Cleveland Plain Dealer, Cincinnati Enquirer coverage). Overlawyered.com intended to give the Ohio constitution a look-through to see whether it in fact contained a provision prohibiting legislatures from legislating, but found that as of this morning the state’s engine for searching the Ohio constitution was broken and returning error messages, which seemed kind of appropriate, actually.
The statute had been challenged not only by the Ohio Academy of Trial Lawyers (which argued its members would lose business) but also by the state AFL-CIO, whose president William A. Burga, quoted in the Columbus Dispatch, said “anyone who has been harmed or injured” deserves “their day in court and…a fair decision from a jury”. That’s kind of ironic, since unions themselves long ago procured for themselves a series of tort reforms far more favorable than anything being asked for by the business community, insulating them from the risk of unbounded jury awards at the hands of complainants who’ve been (say) roughed up by union pickets. In California, for example, state law already pointedly says that citizens’ “right to be free from any violence, or intimidation by threat of violence” does not apply in a context of “otherwise lawful labor picketing” (gee, thanks, guys!) and AB 1268 (Kuehl), now moving toward enactment in the labor/trial-lawyer-friendly state legislature, would curtail unions’ civil liability yet further, curbing the application of exemplary (punitive) damages and vicarious liability even if acts of violence are committed by unionists for the organization’s benefit.
So here’s the net effect: it’s just dandy and highly constitutional for legislators to immunize unions from the danger of adverse jury verdicts for acts of deliberate violence, but it suddenly becomes an unconstitutional invasion of jury prerogatives when they try to set any limits at all on the award of “noneconomic” damages, for categories like pain and suffering and emotional distress, in cases where businesses are charged with responsibility for accidental injuries. What do you think Mr. Burga of the Ohio AFL-CIO would say if someone “harmed or injured” crossing a picket line in Akron or Youngstown decided to claim a constitutional right to “their day in court and…a fair decision from a jury”? Would he still insist that legislatures have no constitutional power to limit liability?
August 17 — New Overlawyered.com page: The case for loser-pays. Despite continuing strong Main Street interest in the loser-pays idea, there’s been precious little in the way of Web resources on it, so we’ve made it the subject of the sixth and latest in our series of topical links pages. It’s the most basic, the most indispensable, and the most overdue of all legal reforms; if we can bring it even a little closer to enactment, our time will have been well spent.
August 17 — Correction. In the August 6 item, “Courts actually begin to define harassment“, summarizing a recent Chicago Tribune report on the ripple effects of last year’s Oncale decision, we erroneously reported that the Tribune article did not mention the Oncale Court’s unanimity. In fact, it did mention it. Our apologies.
August 16 — Think I’m too litigious? I’ll sue! (I). In Bakersfield, Calif., the developer of the Fairway Oaks community won’t sell new houses to attorneys because it considers them too likely to get into disputes. Attorney Timothy Liebaert said he was “shocked” and “very mad” to be turned away on the basis of such a generalization, so — how better to disprove it? — he’s suing them. However, occupation is not among the list of categories covered by California housing discrimination laws, and a Kern County judge proceeded to rule that there are legitimate business reasons for a developer to prefer non-lawyer customers. Fairway’s sponsors had previously sold to two attorneys among 500 home buyers and had gotten into a protracted dispute with one, though it had not gone to litigation. Liebaert has filed an appeal and plans to keep the case going on new theories, such as a claim that a developer, if it wants to pursue a policy of not selling to lawyers, is legally obliged to announce that policy in its ads. (Reuters/Fox News; Los Angeles Times, July 25)
In 1986 it was reported that two medical groups practicing obstetrics and gynecology in Brunswick, Ga., had refused to accept as patients attorney Amanda Williams, who had filed what the doctors considered meritless malpractice suits against some of their number, or her law clerk Sheryl Jolly. Williams said she found the policy “offensive” but said “they no doubt take it personally when I file a suit on behalf of a client”.
August 16 — Think I’m too litigious? I’ll sue! (II). Remind us to stay on the good side of attorney Michael Bidart of Claremont, Calif.’s Shernoff, Bidart, Darras & Arkin, who garnered big headlines in January when he convinced a San Bernardino County jury to vote $120.5 million against Aetna U.S. Healthcare for delaying approval of a bone-marrow transplant that he argued might have saved the life of patient David Goodrich. Aetna CEO Richard Huber, angered by the verdict, blamed it in part on the efforts of “a skillful ambulance-chasing lawyer”. And Bidart responded to this dastardly insult by…suing Huber last month for defamation in Los Angeles Superior Court. Legal correspondent Reynolds Holding comments in the San Francisco Chronicle (August 8) that Bidart is “apparently more adept at dishing publicity than taking it”.
August 16 — To restore individual responsibility, bring back contract principles. In this recent Policy Analysis from the Cato Institute, Professor Michael Krauss of George Mason U. School of Law says one major reason liability law has fallen into disrepute is that courts have supplanted contract with tort principles; it doesn’t matter whether you foresaw a risk and agreed to bear it, they’ll let you sue anyway. Formerly, the law sought to secure parties’ rights to shape their own relationships, the role of tort law being to secure persons against unconsensual invasion. Now reliable law has given way to “a general social insurance scheme”, particularly in areas like product liability and medical malpractice, with lamentable consequences: “our rights have been given increasingly less respect by government”. (Full paper)