Not so fast, he says — the Mississippi Bar didn’t file a “certified copy” of his guilty plea. (Patsy R. Brumfield, “Dickie Scruggs files to dismiss attempt to have him disbarred”, Northeast Mississippi Daily Journal, Apr. 1).

David Rossmiller has ten unanswered questions about loose ends in the Scruggs scandal (Mar. 24) which elicit responses in turn (and more unanswered questions) from NMC and Lotus at Folo (plus an NMC update). These latter bloggers, by the way, have shed their anonymity and stand revealed as Oxford, Miss. lawyer Tom Freeland (NMC) and retired lawyer Jan Goodrich, now of New Smyrna Beach, Fla. (Lotus), now also joined by Jane Tucker.

Is it okay for the University of Mississippi (Ole Miss) to take Scruggs’s money? “It depends on what the felony is…” Chancellor Robert Khayat is quoted as saying (Folo/NMC, Apr. 1; more). Gulfport M.D. Bill Hemeter, in a letter to the editor printed in the Biloxi Sun-Herald (Mar. 19), is claiming prescience: “I sent Chancellor Khayat the book ‘The Rule of Lawyers’ by Walter Olson several years ago, with a warning not to take money from plaintiff attorneys.” Earlier, when Scruggs pled guilty, another university official was heard from:

“My initial reaction is one of sadness,” said Samuel Davis, dean of the University of Mississippi Law School, Scruggs’ alma mater. “I’ve known and been friends with Dick and Diane Scruggs almost 50 years now going back to our days in Pascagoula, and I feel a great sense of compassion for him and his family. And that’s just a very personal reaction. I haven’t really thought about the implications for the legal community or the legal profession.”

Davis, who also directs the Ole Miss Law Center, said not everybody who pleads guilty is guilty and that Scruggs might have had other reasons for the move. If that were the case, Davis said, the reasons likely were good ones.

(emphasis added by an understandably astonished Lotus @ Folo; many, many comments follow).

And from Sid Salter of the Jackson Clarion-Ledger (Mar. 19): “In spite of their insistence that there were no ethical lapses in their behavior on the tobacco suit, [former attorney general Michael] Moore and Scruggs still owe the taxpayers of Mississippi an accounting of the lawyers’ fees and expenses that accrued from that litigation.”

Were you skeptical to keep seeing Sicko described as the “fourth-highest grossing documentary of all time”? I sure was, and looked into it for The American. I guess “twenty-second-highest grossing” doesn’t quite have the same persuasive ring.

I’ll be speaking this evening (Thurs. Sept. 30) in Baltimore as part of a dinner-hour panel discussion on medical malpractice reform sponsored by the Chesapeake Lawyers’ Chapter of the Federalist Society. Other events scheduled for this fall (sponsored by the Federalist Society unless otherwise specified):

* Mon. Oct. 11, Whittier Law School, Costa Mesa, Calif.

* Tues. Oct. 12, Chapman Law School, Orange, Calif. (lunch) and Trinity Law School, Santa Ana, Calif. (late afternoon)

* Thurs. Oct. 14, U.S. Chamber of Commerce, Washington, D.C., Legal Reform Summit, debating Bob Levy of Cato on federalism and litigation reform

* Wed. Nov. 10, Cato Institute, Washington, D.C., commenting on publication of Bob Levy’s new book Shakedown

* Fri., Nov. 12, Federalist Society National Lawyers Convention, Washington, D.C., panel discussion on regulation by litigation with (among others) former Mississippi Attorney General Michael Moore and Michigan Supreme Court Justice Robert Young, Jr.;

* week of Nov. 15 (exact date TBA), Fordham Law School, New York City.

To inquire about our availability for speaking engagements, email editor - at - [this-domain-name] for me or tedfrank - at - [this-domain-name] for Ted.

Stuart Taylor, Jr. takes a hard look at the Kerry/Edwards ticket and weighs the likelihood that it will do much to rein in the litigation biz. Quotes my comment comparing Sen. Edwards to a cleaned-up Michael Moore (”Edwards and the Problem with the Trial-Lawyer Lobby”, National Journal/Atlantic Online, Jul. 13). At Salon, reporter Tim Grieve pens an all-out defense of Edwards which is kind enough to quote me in two places (”The GOP war on trial lawyers”, Jul. 13 (subscription or ad-based “day pass”)). And the Dallas Morning News, in the person of editorial columnist Rod Dreher, includes this site in a short list of recommended weblogs, coincidentally quoting an item of mine on locally based lawyer Fred Baron and his involvement with this year’s Democratic ticket (”Welcome to the blogosphere”, Jun. 23).

“Paradoxically, a lawsuit, especially a flimsy one, can be a boon to a book’s fortunes. And increasingly, some writers and publishers admit to hoping they’ll attract one.” Humorist Al Franken was widely envied by other authors when Fox News filed its much-derided suit against his book title (see Nov. 22), and just this past week a small publisher, Soft Skull Press, got a windfall of coverage when publisher HarperCollins sent a cease and desist order (from which it soon retreated) suggesting that the title of one of its new books, “How to Get Stupid White Men Out of Office” was too close to the title of Michael Moore’s “Stupid White Men”. Of course, things can get sticky fast if the legal complaint really does have merit. (Christopher Dreher, “So sue me… please!”, Boston Globe, Mar. 21) (via Tyler Cowen, Volokh).

In the latest from the world of junk fax litigation (see Jul. 19, 2003, and links from there; Dec. 8), the bowling company AMF Bowling Centers has agreed to give out up to $1 million cash and $1.5 million in coupons to settle a class action alleging that it sent out as many as 352,000 unsolicited faxes. In addition, attorneys Lance McMillian and Stephen Camp of McMillian & Camp in Newnan, Ga. “will get a total of $250,000, while the lead plaintiff, James Michael Moore of Satellite Specialists in Jonesboro, will get $15,000.” AMF agreed to pay $500 to class members who actually kept a copy of an offending fax, while those who merely swear in an affidavit that they received one will get a less exhilarating prize, $250 in bowling coupons. Critics of the settlement say AMF is getting off too easily: under the terms of federal law, the company might have been liable for fines of between $176 million and $528 million if the charges were proven (see Oct. 22, 1999 for more on this calculus). Another Georgia attorney who had settled lawsuits with AMF over 141 junk faxes sent to his clients was also critical of the coupon aspect: “Sending similar coupons through junk-faxing is the conduct that got AMF in trouble. This is a settlement that enriches AMF and doesn’t provide a meaningful benefit to the consumer.” (Steven H. Pollak, “Junk Faxes Could Cost Bowling Co. $1 Million”, Fulton County Daily Report, May 2).

Leftist filmmaker Michael Moore is again drawing fire for not being willing to submit himself to the sorts of borderline-harassment journalistic investigation to which he has long subjected others. Thanks to reader Robert Racansky, our Sept. 16, 1999 coverage of Moore’s hypocrisy has now become the subject of a Glenn Reynolds Instalanche (Sept. 27). Also, welcome readers from Law.com which linked to our recent Wilbur Wright item.

August 20-21 – “Man suing after drunken driving crash”. Nashua, N.H.: “Three years ago, a Merrimack man crashed his Jeep in a Londonderry sand pit, killing a friend. Now, he’s suing the pit’s owner and the couple who threw the party where he was drinking before the crash. Albert Gordon, 36, charges Jay and Susan Barrett of Londonderry were negligent in letting him get drunk at a company party and didn’t warn him and other guests of the dangers of four-wheeling in the sand pit next door. He alleges the pit owner, Continental Paving Inc., should have done something to keep people off its property or warn them of the danger.” Gordon was convicted of aggravated driving while intoxicated; prosecutors said his “blood alcohol level after the accident was more than twice the legal limit for driving.” (AP/Boston Globe, Aug. 16)

August 20-21 – Jury orders Cessna to pay $480 million after crash. Sure, go ahead and let trial lawyers swallow the light aircraft industry — no doubt they’ll do a better job running it. Tobacco-fee angle: one of the plaintiff’s firms in the case is that of Fred Levin, who hauled in an estimated $300 million representing Florida in the tobacco suit, gave enough to the University of Florida’s law school to get it named after himself, and clearly knows how to reinvest his winnings. (Bill Kaczor, “Pensacola Jury Returns $480 Million Verdict in Plane Crash”, AP/TBO.com, Aug. 16; Molly McMillin, “Jury says Cessna is at fault in crash”, Wichita Eagle, Aug. 17; Shannon P. Duffy, “Florida Jury Sets $480 Million Verdict in Crash of Defective Plane”, The Legal Intelligencer, Aug. 17).

August 20-21 – Welcome LinkyDinky, FluffyBunny visitors. The popular best-of-the-web service LinkyDinky gives us a nod, describing Overlawyered.com as a site that “chronicles the sad (and scary) state of affairs due to our litigious attitudes, including bizarre examples of greed overcoming logic” (Aug. 15). We’ve also newly won mention on FluffyBunny.com, which says of us: “Sites like this are always a good read when you’re tired of the dozen shark stories, recaps of Chandra Levy timelines and discussions of the obvious” (first Aug. 16 item). LinkyDinky, FluffyBunny — could a pattern be developing here? Also: Australia’s Blackstump (Aug. 8) and HalluciNETting; Pop-o-ganda.com (”control- trademark - delete”), RidersForJustice.com (”links of interest to bikers”/”Freedom Fighter” section), Daily Frank weblog (July 26), Teri O’Brien (”speaker, author, motivator”), Laipple family of Tulsa, Okla., GentleWolf.com.

August 20-21 – Updates. More new developments in familiar stories:

* By a 9-5 vote, the Fifth Circuit has paved the way for a new trial for Texas death row inmate Calvin Burdine on the grounds that his lawyer was asleep during parts of his trial. The dissenting judges argued that Burdine’s guilt was clear from his confession and other evidence and that his lawyer’s alleged propensity to snooze off made no difference in the case’s outcome. The dissent “also noted that Mr. Burdine waited 11 years before raising the ’sleeping lawyer’ claim and even praised [his lawyer's] performance after the trial.” (see Feb. 12) (Diane Jennings & Ed Timms, “Court sides with inmate in sleeping-lawyer case”, Dallas Morning News, Aug. 14).

* In California, a state panel has ordered Judge Patrick Couwenberg off the bench for lying extensively about his background during the process that led to his appointment, despite his lawyer’s plea that Couwenberg “is a victim of a mental condition called ‘pseudologia fantastica’ for which he is undergoing treatment” and which causes him to fib in a compulsive way (see June 7). (Erica Werner, “Los Angeles Superior Court judge removed from bench for lying”, Sacramento Bee, Aug. 16; Sonia Giordani, “L.A. Judge Removed From Bench for Lies About Past”, The Recorder, Aug. 17).

* “A federal judge has rejected a proposed settlement of an antitrust suit against the National Football League and its member teams over the pricing structure of the ‘Sunday Ticket’ on satellite television after finding that consumers weren’t getting enough money and that the plaintiffs’ lawyers were getting too much. … [The judge said] courts have a duty to reject such settlements so that plaintiffs’ lawyers will be discouraged in the future from bringing weak cases.” (see June 5). (Shannon P. Duffy, “Judge Rejects NFL Antitrust Settlement That Pays Lawyers Too Much, Consumers Too Little”, The Legal Intelligencer, Aug. 20).

* In the eight-year-long saga that has pitted Marilyn Bartlett’s demands for handicap accommodation against the resistance of the New York State board of bar examiners, federal judge Sonia Sotomayor has ruled that the board must allow Bartlett four days, rather than two, to complete the bar exam because of her dyslexia and learning disability (see our editor’s column in Reason, Feb. 1999) (Mark Hamblett, “Learning-Disabled Woman Wins Added Time for New York Bar Exam”, New York Law Journal, Aug. 17; Daniel Wise, “Review of Dyslexic’s Bar Exam Ordered by 2nd Circuit”, New York Law Journal, Aug. 31, 2000).

August 17-19 – Contrarian view on PBR. “The managed care industry is not complaining that loudly about the latest legislation.” (George M. Kraw, “The Patients’ Bill of Rights” (commentary), The Recorder, Aug. 10). Also: Philip K. Howard, “A Cure for the Patient’s Bill of Rights,” AEI-Brookings Joint Center for Regulatory Studies Policy Matters #01-18 June; Karlyn H. Bowman, “Public Favors Patients’ Bill of Rights, but It’s Not a Top Priority,” Roll Call, June 28.

August 17-19 – “The arithmetic of arsenic”. U. of Chicago law prof Cass Sunstein, a frequent contributor to the New Republic and mentioned as a possible Supreme Court pick in a future Democratic administration, examines the role of cost-benefit analysis in the recent EPA arsenic controversy, and concludes that reasonable assumptions could have tipped the decision either way: there is “no obvious, correct decision for government agencies to make”. (AEI/Brookings Joint Center for Regulatory Studies, Working Paper 01-10, Aug. — abstract/full paper (PDF) (see also Apr. 18))

August 17-19 – From the evergreen file: humiliation for dollars. How much embarrassment would you be willing to put up with on the witness stand just to nab a few thousand dollars more in damages after a fender-bender in which “not even a taillight was broken”? As much as this Connecticut couple? (Colleen Van Tassell, “Good Thing It Wasn’t A Tow Job”, New Haven Advocate, March 11, 1999).

August 16 – Bias suits can tap personal assets of innocent higher-ups. “Victims of housing discrimination have a direct claim on the personal assets of business owners and officers whose employees were at fault and need not go through the usual hurdles to pierce the corporate veil, the 9th U.S. Circuit Court of Appeals ruled on July 31.” The court ruled that a mixed-race couple and homebuilder could file suit against David Meyer, the founder of Triad Realty in Twenty-Nine Palms, Calif., over the discriminatory failure of one of the realty firm’s agents to present the couple’s bid on a house, and that Meyer’s personal assets could be proceeded against if he were the owner or proprietor whether or not it could be shown that he knew anything about the discrimination. (Gary Young, “Realtor Liable for Agent Bias, 9th Circuit Rules”, National Law Journal, Aug. 14).

August 16 – “Deputies Sue Diabetic Driver They Beat After Traffic Stop”. Maryland: “Two Frederick County sheriff’s deputies are suing a diabetic man they beat after a traffic stop, contending his complaints about the incident hurt their careers. Eric J. Winer and Jeffrey A. Norris are seeking more than $68,000 from Frederick T. ‘Tom’ Moore IV of Virginia.” In 1998 officers Winer and Norris chased and blocked Moore’s erratic truck on the assumption he was drunk, then beat and doused him with pepper spray and let their dog into his vehicle when he failed to respond to their commands. It turned out, however, that he had been slipping into a diabetic coma. “Moore spent four days in the hospital for dog bites and other wounds from the beating.” In their lawsuit, “the officers say the inquiries and publicity portrayed them unfairly. They contend Moore’s criticism of them in media interviews was ‘highly offensive,’ considering they had ‘prevented serious harm, injury and/or death’ to Moore.” (WJLA/Yahoo, Aug. 10).

August 16 – How Germans see American injury law. “In Germany, lawyers and the media look upon the American tort system with a mixture of fascination, envy, and horror.” Perhaps surprisingly, the difference between the two systems is not so much in the substantive scope of liability; in fact, German law in some respects is more liberal than American, imposing a “duty to rescue” that American courts have rejected, for example. Instead, the differences have more to do with damages: ours are both far higher and far more unpredictable. “It is well documented that the scale of damages resulting from successful tort litigation in Germany is at least one order of magnitude lower than in the US. Thus, where a broken leg in a car accident in New York City might produce a jury award of $300,000, in Berlin it would produce an award of around $30,000.” At the same time, “in comparison with the German tort system the American system is wildly more unpredictable at every level”: many cases result in low compensation or none even though they seem as deserving as the jackpot cases.

“The Germans find the variation in our damages awards totally unacceptable. … [They feel] we should give the same amount to people for the same kind of injury. The Germans enforce a semblance of order with respect to pain and suffering damages by collecting together all the damage awards produced in every trial court in Germany in a given year. This book, called the Tabellen, is published and used by judges and lawyers to estimate what a damage award in a new case should be.” The American system is “actively opposed” to any such approach (more on “scheduled compensation” abroad: Aug. 10). (Anthony J. Sebok (professor, Brooklyn Law School), “How Germany Views U.S. Tort Law”, FindLaw.com, July 23) (via Arts & Letters Daily).

August 16 – New daily traffic record on Overlawyered.com. Upwards of 11,700 pages served on Tuesday, helped along by that excellent John Leo column and by our first announcement mailing since we moved the list to Topica (though we bunglingly forgot to include in it a link to this site’s front page, an omission we’ll rectify in the future). Thanks for your support!

August 15 – John Leo on Overlawyered.com. The columnist pulls together a fresh batch of “news from the annals of zero tolerance and the continuing campaign to make the culture ever more deranged”. He gives generous credit to the website you are perusing at this very moment, which “reports brightly on the amazing excesses of the litigious society” (”It’s a mad, mad world”, U.S. News/TownHall.com, Aug. 14). Some recent zero-tolerance cases he describes, which hadn’t made it onto this site yet: “A New Jersey student made a baseball bat in shop class, then was expelled for refusing to hand it over to a teacher as a dangerous weapon. A National Merit scholar in Fort Myers, Fla., missed her graduation ceremony and was sent to jail after a kitchen knife was found on the floor of her car. She said the knife had fallen there when she moved some possessions over the weekend. At a Halifax, Nova Scotia, school, a ban against throwing snowballs also prohibited all arm motions that can be interpreted as possible attempts to throw something at anyone.”

August 15 – Navegar not nailed. Pundit/law prof Erwin Chemerinsky was sure that Navegar’s sued-over TEC-DC9 weapon, though it sold by the hundreds of thousands, had no legitimate uses whatsoever. Notes Reason Online’s Jacob Sullum: “it was galling how readily anti-gun activists and politicians leaped from the premise that thugs liked a given gun to the conclusion that no one else did”. (”The Evil Gun”, Aug. 14; see also “California Dreamin’”, WSJ/OpinionJournal.com, Aug. 10; “Gun makers’ liability (editorial), Las Vegas Review-Journal, Aug. 7). And given voter trends in last November’s election, many national Democrats are racing to distance themselves from the agenda of the litigate-and-confiscate antigun groups. “More than any other issue, some analysts say, unease about gun control helped defeat presidential candidate Al Gore in several traditionally Democratic Southern and border states — any one of which would have been enough to put him in the White House.” (Susan Page, “Democrats back off on firearms”, USA Today, Aug. 14). Similarly: James Dao, “New Gun Control Politics: A Whimper, Not a Bang”, New York Times, March 11; Juliet Eilperin and Thomas B. Edsall, “For Democrats, Gun Issue Losing Its Fire”, Washington Post, Oct. 20, 2000.

August 15 – “Girl from Ipanema is sued over the song she inspired”. “It was as a sultry 18-year-old that Heloise Pinheiro inspired Brazil’s best-known tune. Now aged 57, she is being threatened with legal action by the songwriters’ heirs, who claim that her boutique, ‘The Girl From Ipanema’, infringes their copyright.” (Philip Delves Broughton, Daily Telegraph (U.K.), Aug. 13; “The churls from Ipanema” (editorial), Aug. 13).

August 13-14 – Why she’s quitting law practice. Karen Selick, a libertarian attorney who writes a column for Canadian Lawyer and practices in a small community in Ontario, is getting out of the business and explains why on her website. To begin with, there’s the aggravation and emotional wear and tear of matrimonial law, the bulk of her practice. “Then there’s the state of the law itself. When I started in this field in 1985, there was at least a modicum of cohesiveness to the case law. That has now vanished completely. Not only is the law different from what it was in 1985 — it’s different from what it was last month or last week. Once upon a time, you could give your clients a pretty good idea of the outcome they might expect if they went to court. Now all you can tell them is that every case is a crapshoot.” And then there’s the law’s tilt against husbands and fathers, “to the point where representing women in a manner that protects you from negligence suits requires a lawyer to make claims that I consider to be unethical, while representing men means you are perpetually on the losing side.” (”A Twist on Gresham — Bad Laws Drive Out Good Lawyers”, undated, late July).

August 13-14 – “Shark-bite victim turns to Cochran”. By reader acclaim: “The family of a highly publicized shark-attack victim mauled while swimming at a Bahamian resort has consulted a famous legal barracuda to represent them in a possible suit against the hotel: Johnnie Cochran.” The family of 36-year-old Krishna Thompson “has accused lifeguards at the Our Lucaya Beach & Golf Resort on Grand Bahama of lingering on the beach during the attack. … The resort has insisted that lifeguards acted swiftly in pulling Thompson out of the water. The resort’s statements were backed by a Bahamian doctor who interrupted his morning stroll to help.” (Tere Figueras, Miami Herald, Aug. 10).

August 13-14 – “We often turn irresponsibility into legal actions against others”. Two events in the Tampa Bay area caught the eye of St. Petersburg Times columnist Robyn Blumner: the criticism that greeted the city of St. Petersburg for declining to cancel a free fireworks display in the face of an approaching lightning storm, even though it might tempt residents to go outside; and “a sexual harassment lawsuit filed by Nicole Ferry against the University of South Florida, in which the state of Florida agreed to give her $25,000″ for having subjected the student to a sexually explicit photograph (warned of in advance) as part of her university art class. The two news reports suggest to Blumner that our sense of personal responsibility and resilience is slipping fast, and remind her of a certain website which (among other functions) “documents the way predatory lawyers help people turn their personal failings into lawsuit fodder.” Which cases on this site does Blumner “find most appalling?” Read the column and find out. (July 15).

August 13-14 – Tobacco: judge cuts Boeken award. In Los Angeles, Superior Court Judge Charles McCoy has upheld $105 million worth of a jury’s $3 billion award to smoker Richard Boeken against Philip Morris (more). The company has vowed to appeal, citing among other reasons the judge’s refusal to admit evidence that would have shed light on Boeken’s credibility, in particular his record of criminal convictions on fraud and other charges. (Anna Gorman, “Huge Award to Smoker Cut by Judge”, L.A. Times, Aug. 10; Cadonna M. Peyton, AP/Daily Southtown, Aug. 10). On the evidence exclusion issue, see “Tobacco Giant Cites Plaintiff’s Credibility; Courts: Philip Morris Says Smoker’s Criminal Record Should Have Been Considered by Jury that Awarded Him $3 Billion,” Los Angeles Times, July 29, summarized in Columbia Law School Faculty In the News, Summer 2001 (scroll to “Prof. Richard Uviller”). See also Paul Campos, “Outrageous verdicts are genteel theft”, Rocky Mountain News (Denver)/Jewish World Review, June 9).

August 13-14 – Tobacco: Boston Globe on state-settlement aftermath. Meanwhile, a report from the National Conference of State Legislatures confirms what is already well known, namely that states are spending only a small fraction of their $246-billion tobacco windfall on programs to hector smokers into quitting, propagandize youngsters against the habit, and vilify tobacco-company execs in mass-media ads. The Boston Globe’s coverage strings together many quotes from anti-tobacco activists flaying the settlement as not tough enough, but seems unable to find anyone willing to blast the settlement from the other direction, as an extortive deal premised on bad law, nor anyone who will point out the cozy nature of the alliance between many AGs and trial lawyers with whose firms they often had personal and campaign-finance links. The story also misses the reason why tobacco companies have found it so easy to recover the settlement’s costs in higher prices, namely the settlement’s provisions cartelizing the industry and hobbling new entrants (see July 29, 1999) — but then, none of the groups quoted in the article (anti-tobacco activists, state governments, trial lawyers, tobacco companies themselves) have any interest in shining light in that particular dark corner. Incredibly, even Mississippi AG Michael Moore and his good friend trial lawyer Dickie Scruggs, who led the whole crusade, now have the nerve to criticize the outcome as “perverse”, ineffective and so on. Is Scruggs saying he was outnegotiated or that he didn’t get his clients that great a deal, and if so is he going to give back some of his estimated billion in fees? (Thomas Farragher, “Little of $246b deal fights tobacco”, Boston Globe, Aug. 9). The same paper reports on the ugly feud over what Massachusetts owes to the law firm Brown Rudnick, which represented the state in the settlement and now says $178 million in fees aren’t enough. “‘If you divide what we’re getting, which is $178 million over 25 years, and then divide that by [about 50] partners, you’ll see that it’s certainly significant. But on an annual basis, it’s not something that anybody can retire on,’ said M. Frederick Pritzker, chairman of Brown Rudnick’s litigation department.” (Thomas Farragher, “State, lawyers fight over settlement fees”, Boston Globe, Aug. 10). Daynard-cite dishonor roll: both the Globe’s Aug. 9 entry and the L.A. Times’s Aug. 10 (see above) quote Northeastern U.’s Richard Daynard on tobacco suits without mentioning his interest as a contingent-fee claimant to state settlement booty (the Globe’s Aug. 10 article does mention this in passing, however).

June 30-July 2 – “Backstage at News of the Weird”. Chuck Shepherd writes the sublime “News of the Weird” feature, which is syndicated weekly to major papers and alternative weeklies nationwide. From time to time he’s asked which are “his favorite online scanning sites for weird news”. This site came in #4 of 6 — you’ll want to check out the whole list. (June 19).

Remarkable stories from the legal system turn up nearly every week both in “News of the Weird” and in the more recently launched “Backstage” column. Here’s one from the same June 19 number: “An Adel, Ga., man sued the maker of Liquid Fire drain cleaner for this injury (and follow this closely): LF comes in a special bottle with skull and crossbones and many warnings, but our guy thought, on his own that the bottle’s spout just might drip, so he poured the contents into his own bottle (which he thought would be drip-proof), whose packaging wasn’t able to withstand the LF and began to disintegrate immediately, causing the contents to spill onto his leg. So now he wants $100k for that.”

June 30-July 2 – Supreme Court vindicates Boy Scouts’ freedom. Matthew Berry, an attorney with the Institute for Justice who helped write an amicus brief for Gays and Lesbians for Individual Liberty, explains why the principle of freedom of association that protects the Boy Scouts from government dictation of its membership is also crucial in protecting the freedom of gays and lesbians (”Free To Be Us Alone”, Legal Times, April 24) (case, Boy Scouts of America et al v. Dale, at FindLaw). See also Independent Gay Forum entries on the subject by Tom Palmer and Stephen H. Miller.

June 30-July 2 – “DOJ’s Got the Antitrust Itch”. After a decade or two of quiescence, antitrust is on the rampage again, led by Joel Klein and other officials at the Justice Department’s Antitrust Division. (Declan McCullagh, Wired News, June 28).

June 30-July 2 – “Being a Lefty Has Its Ups and Downs”. Letter to the editor published in yesterday’s New York Times from our editor runs as follows: “To the Editor: At the City Council’s hearing on whether left-handed people should be protected by anti-discrimination law (Elizabeth Bumiller, “Council Urged to End a Most Sinister Bias”, June 22), a high school student called it discriminatory that banisters and handrails are often on the right side of public stairwells — at least from the perspective of someone climbing up. But people walk on stairs in both directions. It would seem the same stairwell that oppressively discriminates against lefties on the way up also discriminates against righties on the way down. Can they sue, too?

“The student also asserted that ’societal discrimination results in the death of the left-handed population an average of 14 years earlier than the right-handed population.’ However, the study that purported to reveal such a gap was soon refuted. A 1993 study by the National Institute on Aging found no increase in mortality associated with handedness — not surprisingly, since insurance actuaries would long ago have made it their business to uncover such a correlation.” — Very truly yours, etc. (no longer online) (more on life expectancy controversy: APA Monitor, Psychological Bulletin, Am Journal Epidem — via Dr. Dave and Dee).

Postscript: Scott Shuger in Slate “Today’s Papers” promptly took a whack at us over the above letter, claiming we didn’t realize that big stairwells at places like high schools have two-way traffic patterns where people keep to the right, leaving lefties without a rail for the handy hand whether headed up or down. But if anything, this proves our point that the issue isn’t, as had been claimed, the insensitive decision to place handrails on one side but not the other: typically these larger stairwells have handrails on both sides. Instead the broader culprit for those who wish to steady themselves with their left hand is the walk-on-the-right convention. Had the advocate of an antidiscrimination law acknowledged that point, however, much of the steam would have gone out of her argument, since few in her audience would have been inclined to view the walk-on-the-right convention as fixable “discrimination”. Nor is there anything in the original coverage to indicate that her gripe was at the absence of center rails, which have inconveniences of their own.

June 29 – Failure to warn about bad neighborhoods. “A Florida jury has awarded $5.2 million to the family of a slain tourist after finding that Alamo Rent-A-Car failed to warn the victim and her husband about a high-crime area near Miami.” Dutch tourists Gerrit and Tosca Dieperink, according to the National Law Journal, “rented an Alamo car in Tampa and planned to drop it off in Miami”. When they stopped in the Liberty City area of Miami to ask directions, they were targeted by robbers who recognized the car as rented, and Mrs. Dieperink was shot and killed. Lawyers for her survivors sued Alamo, saying it was negligent for the company not to have warned customers — even customers renting in Tampa, across the state — of the perilousness of the Liberty City neighborhood, where there’d been numerous previous attacks on rental car patrons. After circuit judge Phil Bloom instructed the jury that Alamo had a duty to warn its customers of foreseeable criminal conduct, jurors took only an hour of deliberations to find the company liable, following a seven-day trial. (Bill Rankin, “Alamo’s Costly Failure to Warn”, National Law Journal, May 22; Susan R. Miller, “Trail of Tears”, Miami Daily Business Review, May 8.)

Which of course raises the question: how many different kinds of legal trouble would Alamo have gotten into if it had warned its customers to stay out of certain neighborhoods? Numerous businesses have come under legal fire for discriminating against certain parts of town in dispatching service or delivery crews (”pizza redlining”); one of the more recent suits was filed by a civil rights group against online home-delivery service Kozmo.com, which offers to bring round its video, CD and food items in only some neighborhoods in Washington, D.C., mostly in affluent Northwest. (Elliot Zaret & Brock N. Meeks, “Kozmo’s digital dividing lines”, MSNBC/ZDNet, April 12; Martha M. Hamilton, “Web Retailer Kozmo Accused of Redlining”, Washington Post, April 14).

June 29 – “Angela’s Ashes” suit. Frank McCourt (Angela’s Ashes, ‘Tis) and his brother Malachy (A Monk Swimming) have had a runaway success with their memoirs of growing up poor in Ireland and emigrating to America (4 million copies have sold of Angela’s alone). Now they’re being sued by Mike Houlihan, “who in the early 1980s raised $20,750 to stage and produce a McCourt brothers play called ‘A Couple of Blaguards,’” also based on their early life. The play had only modest success, though it has begun to be revived frequently with the success of the memoir books. Mr. Houlihan says he and several others are entitled to 40 percent of the profits from Angela’s Ashes and the other memoirs because they are a “subsidiary work” of the play. “That would be a nice piece of money, wouldn’t it?” says Frank McCourt, who says his old associate “has hopped on America’s favorite form of transportation — the bandwagon”. (Joseph T. Hallinan, “Backers of McCourt’s Old Play Say They Are Due Royalties”, Wall Street Journal, June 6 (fee)).

June 29 – “Trying a Case To the Two Minute Mind”. California attorney Mark Pulliam passes this one on: a recent brochure from the San Diego Trial Lawyers Association offered a sale on educational videos for practicing litigators, of which one, by Craig McClellan, Esq., was entitled “Trying a Case To the Two Minute Mind; aka Trial by Sound Bite” (worth one hour in continuing legal education credits). According to the brochure, “The presentation shows how to streamline each element of a trial based on the fact that most jurors are used to getting a complete story within a two minute maximum segment on the evening news. This video demonstrates the effectiveness of visual aids, impact words and even colors, to influence the juror’s perception and thought process in the least amount of time.”

June 28 – Oracle did it. Today’s Wall Street Journal reports that the big software maker and Microsoft rival has acknowledged it was the client that hired detective firm Investigative Group International Inc. for an elaborate yearlong operation to gather dirt on policy groups allied with Microsoft; the detective firm then offered to pay maintenance workers for at least one of the groups’ trash (see June 26). “The IGI investigator who led the company’s Microsoft project, Robert M. Walters, 61 years old, resigned Friday after he was named in stories about the case.” Oracle claims to have no knowledge of or involvement with illegalities — buying trash isn’t in itself necessarily unlawful — and IGI also says it obeys the law. (Glenn R. Simpson and Ted Bridis, “Oracle Admits It Hired Agency To Investigate Allies of Microsoft”, June 28 (fee))

June 28 – Born to regulate. Opponents say the Occupational Safety and Health Administration’s “ergonomics” proposals would tie America’s employers in knots in the name of protecting workers from carpal tunnel syndrome and other repetitive motion injuries (see March 17), and resistance from the business community is stiff enough that the regs ran into a roadblock in the Senate last week. However, Ramesh Ponnuru at National Review Online reports that “Marthe Kent, OSHA’s director of safety standards program and head of the ergonomics effort, couldn’t be happier at her job. ‘I like having a very direct and very powerful impact on worker safety and health,’ she recently told The Synergist, a newsletter of the American Industrial Hygiene Association. ‘If you put out a reg, it matters. I think that’s really where the thrill comes from. And it is a thrill; it’s a high.’ Later in the article, she adds, ‘I love it; I absolutely love it. I was born to regulate. I don’t know why, but that’s very true. So as long as I’m regulating, I’m happy.’” (Ramesh Ponnuru, “The Ergonomics of Joy” (second item), National Review Online Washington Bulletin, June 26). See also “Senate Blocks Ergonomic Safety Standards”, Reuters/Excite, June 22; Murray Weidenbaum, “Workplace stress is declining. Does OSHA notice?”, Christian Science Monitor, June 15.

June 28 – Giuliani’s blatant forum-shopping. Time was when lawyers showed a guilty conscience about the practice of “shopping” for favorable judges, and were quick to deny that they’d attempted any such thing, lest people think their client’s case so weak that other judges might have thrown it out of court. Now they openly boast about it, as in the case of New York City’s recently announced plans to sue gun makers. The new legal action, reports Paul Barrett of the news-side Wall Street Journal, could “prove especially threatening to the industry because Mr. Hess (Michael Hess, NYC Corporation Counsel) said the city would file it in federal court in Brooklyn. The goal in doing so would be to steer the suit to the courtroom of U.S. District Judge Jack Weinstein, who is known for allowing creative liability theories. … Mr. Hess said that New York will ask Judge Weinstein to preside over its suit because it is ‘related’ to the earlier gun-liability case [Hamilton v. Accu-Tek, now on appeal.]” (See also Nov. 1). (”New York City Intends to File Lawsuit Against Approximately 25 Gun Makers”, June 20 (fee)).

June 28 – From our mail sack: transactional-lawyer whimsy. New York attorney John Brewer writes: “This may just be a bit of transactional lawyer inside humor, or it may be evidence that the agnostic and individualistic themes in our culture have finally penetrated lawyers’ contract boilerplate (which for a variety of reasons tends to be an extraordinarily conservative-to-anachronistic form of stylized discourse). According to the April 2000 issue of Corporate Control Alert [not online to our knowledge], a provision in the documentation for the 1998 acquisition of International Management Services Inc. by Celestica Inc. contained a definition which read in part as follows:

“Material Adverse Change” or “Material Adverse Effect” means, when used in connection with the Company or Parent, as the case may be, any change or effect, as the case may be, caused by an act of God (or other supernatural body mutually acceptable to the parties) …

“In a sign that some of the old certitude remains, however,” John adds, “the accompanying article referred colloquially to the clause containing this language as a “hell-or-high-water” provision without any suggestion of mutually acceptable alternative places of everlasting torment.”

June 27– Welcome New Republic readers. Senior writer Jodie Allen of U.S. News & World Report tells us we’re her favorite website, which we consider proof we’re on the right track. Writing the New Republic’s “TRB from Washington” column this week, her theme is our legal system’s willingness to entertain all sorts of remarkable new rights-assertions that might have left Thomas Jefferson scratching his head, and she says readers who want more “can monitor such cases at Overlawyered.com.” We’ll help with the following thumbnail link-guide to cases mentioned in the column: drunken airline passenger, child left in hot van, right to non-sticky candy, bank robber and tear gas device, beer drinker’s restroom suit & Disneyland characters glimpsed out of uniform, haunted house too scary, high-voltage tower climber (& second case), killer whale skinny dip, obligation to host rattlesnakes, parrot-dunking, Ohio boys’ baseball team, school administrator’s felony, stripper’s rights, and murderer’s suit against her psychiatrists. (”Rights and Wrongs”, July 3). (DURABLE LINK)

June 27 – Reprimand “very serious” for teacher. Norwalk, Ct.: “After an in-house investigation that lasted more than a month, Carleton Bauer, the Ponus Ridge Middle School teacher who gave an 11-year-old girl money to purchase marijuana, has been reprimanded with a letter in his file.” The girl’s father, who was not notified of the disciplinary action taken against the teacher but was contacted by the press, felt the teacher’s union had been allowed to negotiate too lenient a treatment for Bauer, a 31-year teaching veteran, but Interim Superintendent of Schools William Papallo called the penalty “fair and equitable”, saying, “For someone who has worked so long, a reprimand is very serious”. (Ashley Varese, “Ponus teacher ‘lacked judgment’”, Norwalk Hour, June 16, not online).

June 27 – Peter McWilliams, R.I.P. Although (see above item) there are times when our authorities can be lenient toward marijuana-related infractions, it’s more usual for them to maintain a posture of extreme severity, as in the case of well-known author, AIDS and cancer patient, and medical marijuana activist Peter McWilliams, whose nightmarish ordeal by prosecution ended last week with his death at age 50. (William F. Buckley Jr., Sacramento Bee, June 21; Jacob Sullum, Reason Online/Creators Syndicate, June 21; John Stossel/ABC News 20/20, “Hearing All the Facts”, June 9; J.D. Tuccille, Free-Market.Net Spotlight; Media Awareness Project).

June 27 – AOL “pop-up” class action. In Florida, Miami-Dade County Judge Fredricka Smith has granted class action status to a suit against America Online, purportedly on behalf of all hourly subscribers who viewed the service’s “pop-up” ads on paid time. Miami attorney Andrew Tramont argues that it’s wrong for subscribers to be hit with the ads since they’re paying by the minute for access to the service (at least if they’re past their allotment of free monthly time), and “time adds up” as they look at them — this, even though most users soon learn it takes only a second to click off an ad (”No thanks”) and even though the system has for some time let users set preferences to reduce or eliminate pop-ups. The case seeks millions in refunds for the time customers have spent perusing the ads. According to attorney Tramont, “the practice amounts to charging twice for the same product. ‘AOL gets money from advertisers, then money from subscribers, so they’re making double on the same time,’ he said.” Please don’t anyone call to his attention the phenomenon of “magazines”, or we’ll never get him out of court. (”Florida judge approves class-action lawsuit against America Online”, CNN, June 25).

June 26 – Cash for trash, and worse? We’re glad we didn’t play a prominent role in defending Microsoft in its antitrust dispute, since we’d have found it very intrusive and inconvenient to have our garbage rifled by private investigators and our laptops stolen, as has happened lately to a number of organizations that have allied themselves with the software giant in the controversy (Declan McCullagh, “MS Espionage: Cash for Trash”, Wired News, June 15; Ted Bridis, “Microsoft-Tied Groups Report Weird Incidents”, Wall Street Journal, June 19 (fee); Glenn Simpson, “IGI Comes Under Scrutiny in Attempt To Purchase Lobbying Group’s Trash”, Wall Street Journal, June 19) (fee); Ted Bridis and Glenn Simpson, “Detective Agency Obtained Documents On Microsoft at Two Additional Groups”, Wall Street Journal, June 23 (fee)). Material surreptitiously obtained from the National Taxpayers Union, Citizens for a Sound Economy, and Independent Institute soon surfaced in unflattering journalistic reportage on these groups in the New York Times, Washington Post and Wall Street Journal, and two attempts were also made to get night cleaning crews to sell the trash of the pro-Microsoft Association for Competitive Technology. They’re calling it “Gatesgate”.

In other news, the New York Observer checks into what would happen if the giant company tried to flee to Canada to avoid the Justice Department’s clutches (answer: probably wouldn’t make any difference, they’d get nailed anyway) (Jonathan Goldberg, “The Vancouver Solution”, June 12). And over at the Brookings Institution, it’s a virtual civil war with fellow Robert Crandall arguing against a breakup and fellow Robert Litan in favor (Robert Crandall, “If It Ain’t Broke, Don’t Break It Up”, Wall Street Journal, June 14; Robert Litan, “The rewards of ending a monopoly”, Financial Times, Nov. 24; Robert Litan, “What light through yonder Windows breaks?”, The Globe and Mail (Toronto), June 11, all reprinted at Brookings site).

June 26 – “Was Justice Denied?”. Dale Helmig was convicted of the murder of his mother Norma in Linn, Mo. This TNT special June 20 impressed the Wall Street Journal’s Dorothy Rabinowitz as making a powerful case for the unfairness of his conviction (”TV: Crime and Punishment”, June 19 (fee); TNT press release April 13). At the TNT site, links will lead you to more resources on errors of the criminal-justice system both real and alleged, including “Convicted by Juries, Exonerated by Science” (DNA exonerations); “The Innocent Imprisoned“; Justice: Denied, The Magazine for the Wrongly Convicted; CrimeLynx (criminal defense attorneys’ resource); and Jeralyn Merritt, “Could This Happen To Your Spouse or Child?” (Lawyers.com).

June 26 – Updates. Catching up on further developments in several stories previously covered in this space:

* In the continuing saga of leftist filmmaker Michael Moore (see Sept. 16), who made his name stalking the head of General Motors with a camera at social and business events (”Roger and Me”) and then called the cops when one of his own fired employees had the idea of doing the same thing to him, John Tierney of the New York Times has added many new details to what we knew before (”When Tables Turn, Knives Come Out”, June 17) (reg).

* Trial lawyers are perfectly livid about that New England Journal of Medicine study (see April 24) finding that car crash claimants experience less pain and disability under a no-fault system that resolves their claims relatively quickly. Now they’re throwing everything they can find at the study, lining up disgruntled former employees to question the researchers’ motives, saying the whole thing was tainted by its sponsorship by the Government of Saskatchewan (which runs a provincial auto insurance scheme), and so forth. (Association of Trial Lawyers of America page; Bob Van Voris, “No Gain, No Pain? Study Is Hot Topic”, National Law Journal, May 22).

* A Texas judge has entered a final judgment, setting the stage for appeal, against the lawyers he found had engaged in “knowingly and intentionally fraudulent” conduct in a product liability case against DaimlerChrysler where both physical evidence and witness testimony had been tampered with (see May 23). “Disbarment is a possible consequence, as are criminal charges, but none has yet been filed.” (Adolfo Pesquera, “Judge orders lawyers to pay $865,489″, San Antonio Express-News, Jun. 23). Update: see Mar. 17, 2003.

* It figures: no sooner had we praised the U.S. House of Representatives for cutting off funds for the federal tobacco suit (see Jun. 21) than it reversed itself and voted 215-183 to restore the funds (Alan Fram, “House OKs Funds for Tobacco Lawsuit”, AP/Yahoo, Jun. 23).

June 22-25 – Antitrust triumph. With great fanfare, the Federal Trade Commission announced this spring that it had broken up anticompetitive practices in the recording industry that were costing CD buyers from $2 to $5 a disc, saving consumers at least hundreds of millions of dollars. “So, how far have CD retail prices fallen since? Not a penny … Now, retail and music executives are accusing FTC Chairman Robert Pitofsky of misleading consumers and feeding the media ‘artificially inflated’ pricing statistics, possibly to camouflage the lusterless findings of the FTC’s costly two-year investigation of CD advertising policies.” A commission spokesman says it can’t release the basis of its pricing study because it’s based on proprietary information. (Chuck Philips, “FTC Assailed on Failed CD Price Pledge”, Los Angeles Times, June 2).

June 22-25 – More trouble for “Brockovich” lawyers. Latest trouble for real-life L.A. law firm headed by Ed Masry, dramatized in the Julia Roberts hit film “Erin Brockovich“: a wrongful termination suit filed by former employee Kissandra Cohen, who at 21 years of age is the state’s youngest practicing lawyer. Cohen alleges that when she worked for Masry he “made repeated sexual advances, and when she did not respond, he fired her. Cohen, who is Jewish, also claims that Masry and other attorneys in his office made inappropriate comments about her Star of David necklace and attire” and kept copies of Playboy in the office lobby. Also recently, Brockovich’s ex-husband, ex-boyfriend and their attorney were arrested in a scheme in which they allegedly threatened that unless Masry and Brockovich saw that they were paid off they’d go to the press with scandalous allegations about the two (the sort of thing called “extortion” when it doesn’t take place in the context of a lawsuit). (”Sex Scandal for Brockovich Lawyer”, Mr. Showbiz, April 28).

June 22-25 – Compare and contrast: puppy’s life and human’s. Thanks to reader Daniel Lo for calling to our attention this pair of headlines, both on articles by Jaxon Van Derbeken in the San Francisco Chronicle: “S.F. Dog Killer Avoids Three-Strikes Sentence”, June 2 (Joey Trimm faced possible 25 years to life under “three strikes” law for fatal beating of puppy, but prosecutors relented and he was sentenced to only five years); “Man Gets Five Years In Killing of Gay in S.F.”, April 25 (”high-profile” homicide charges against Edgard Mora, whom prosecutors had “long labeled a hate-filled murderer”, resolved with five-year sentence for involuntary manslaughter.)

June 21 – And don’t say “I’m sorry”. “Be careful,” said the night nurse. “They’re suing the hospital.” First-person account of how it changes the atmosphere on the floor when the family of a patient still under care decides to go the litigation route. Highly recommended (Lisa Ochs, “In the shadow of a glass mountain”, Salon, June 19).

June 21 – Good news out of Washington…. The House voted Monday to curb the use of funds by agencies other than Justice to pursue the federal tobacco lawsuit. The Clinton Administration claims the result would be to kill the suit (let’s hope so), but it and other litigation advocates will be working to restore the money at later stages of the appropriations process, and the good guys won by a margin of only 207-197 (June 19: Reuters; Richmond Times-Dispatch/AP; Washington Post) (It soon reversed itself and restored the funds: see June 26).

June 21 – …bad news out of New York. Mayor Rudolph Giuliani has joined the ranks of gun control advocates willing to employ the brute force of litigation as an end run around democracy. “[F]ollowing the lead of many of the nation’s other large cities, [Giuliani] announced yesterday that his administration would file its own lawsuit against handgun manufacturers, seeking tens of millions of dollars to compensate New York City for injuries and other damage caused by illegal gun use.” Maybe he wouldn’t have made such a good Senator after all (Eric Lipton, “Giuliani Joins the War on Handgun Manufacturers”, New York Times, June 20).

June 21 – Stress of listening to clients’ problems. Dateline Sydney, Australia: “A court awarded [U.S.] $15,600 in damages to a masseuse who suffered depression after listening to clients talk about their problems. Carol Vanderpoel, 52, sued the Blue Mountains Women’s Health Center, at Katoomba, west of Sydney, claiming she was forced to deal with emotionally disturbed clients without training as a counselor or debriefing to cope with resultant stress.” (”Singing the Blues: Masseuse wins damages for listening to problems”, AP/Fox News, June 20; Anthony Peterson, “$26,000 the price of earbashing”, Adelaide Advertiser, June 20).

September 30 – Power attracts power. With billions flowing into its coffers and its new semiofficial status as a fourth branch of government, the entrepreneurial plaintiff’s bar is fast becoming a magnet for celebrity litigators. This morning’s papers announce that Johnnie Cochran Jr., best known for his criminal defense work on the O.J. Simpson case, is moving to New York where he’ll merge his practice with that of one of Gotham’s largest plaintiff firms, Schneider, Kleinick, Weitz, Damashek & Shoot. Meanwhile, attorney David Boies, famed for representing the U.S. Justice Department in its antitrust case against Microsoft, is teaming up with a prominent Washington, D.C. plaintiff’s firm, Cohen, Milstein, Hausfeld & Toll, to prepare a class-action assault against managed care. Cohen, Milstein is known for, among many other cases, class action suits against German companies over World War II claims and against Texaco over allegations of racial discrimination.

In truth, neither move is an especially surprising or radical departure. Cochran’s Los Angeles legal practice has long leaned heavily on injury suits, and both the Schneider firm and his have made a particular specialty of police-misconduct suits, the lucrative cousin of criminal defense law (the name of the game being in both instances to get people mad at the police, but with a lot bigger paydays to be had working the civil side). Boies has also taken part in class-action plaintiff’s work in the past, and one of the underpublicized aspects of the Microsoft war is the likelihood that a government victory in the suit will be followed by a barrage of copycat/piggyback suits by private class action lawyers (though presumably not by Boies himself), the heavy lifting on the development of legal theories having been done at taxpayer expense thanks to the U.S. Department of Justice. (Laurie McGinley and Milo Geyelin, “Attorneys Prepare Suits Against HMOs,” Wall Street Journal, Sept. 30; Katherine E. Finkelstein, “Johnnie Cochran Quits TV Job to Join Manhattan Law Firm,” New York Times, Sept. 30)

September 30 – Impending assault on HMOs. More details in today’s news-side Wall Street Journal on how trial lawyer troops are massing on the border for an all-out attack on managed care. Among those involved is Pascagoula, Mississippi’s Richard Scruggs, who is reaping hundreds of millions of dollars from tobacco suits and who also happens to be the brother-in-law of Senate Majority Leader Trent Lott. Attorneys “generally declined to identify the companies they plan to name as defendants, in part to preserve the element of surprise”. Class-actioners Cohen, Milstein, Hausfeld & Toll “are preparing a national class-action suit against a leading managed-care provider on behalf of eight million members” which could be filed within days as soon as they finish their process of shopping for favorable jurisdictions: “We haven’t decided which forum yet,” says spokesman Joseph Sellers. (Laurie McGinley and Milo Geyelin, “Attorneys Prepare Suits Against HMOs,” Wall Street Journal, Sept. 30).

September 30 –Overlawyered.com now three months old; 45,000 pages served. Monday set a new daily hit record for us, and then we promptly broke it on Tuesday. Thanks for your support!

September 29 – ADA protection for boozing student athletes. How very foolish of Warren Township High School in suburban Chicago to think it could get away with its rule saying you’d be kicked off its varsity basketball squad if you were caught driving under the influence. Didn’t it know federal law now defines alcoholism as a disability? “The boy has a recognized medical condition for which he has sought treatment,” said an attorney for 17-year-old Rickey Higgins, who filed suit earlier this month under the Americans with Disabilities Act (ADA) seeking $100,000 in compensation and reinstatement to the team. (Amanda Vogt, “Ineligible Athlete Sues High School”, Chicago Tribune, Sept. 9; “Teen alcoholic sues to get back on basketball team”, CNN, Sept. 20.)

September 29 – Employment-law retaliation: real frogs from “totally bogus” gardens. One quarter of cases filed with the Equal Employment Opportunity Commission now charge “retaliation”: the employee’s working conditions deteriorated in some way after he or she filed a legal complaint or testified regarding someone else’s. “Many managers ‘may not realize that retaliation does not require a valid underlying claim,’ said John D. Canoni, a partner at the Nixon Peabody law firm in New York. ‘You can have a complaint that’s totally bogus, unfounded and unrealistic, but if someone reacts against you because of that claim, even if it was bogus,’ you can win a retaliation suit, he said.”

Particularly dangerous is for companies to take action against employees based on admissions of misconduct that emerge in their sworn testimony; to do so is seen as punishing them for participating in legal proceedings. The 11th Circuit gave a green light for trial to a wrongful termination suit by a Birmingham, Ala. manager fired after he admitted sexually harassing a receptionist in testimony arising from her suit. In another recent case, a jury found against employee Oliver Medlock on every other count, but decided it was retaliation for Ortho Bio-Tech Inc. to have suspended him based on revelations in his deposition; the 10th Circuit in Denver upheld its $460,000 award.

“So what are the lessons for employers?” asks the New York Times‘ Richard A. Oppel Jr. “In a nutshell: get rid of problem employees quickly. Be aware that some employees might file discrimination claims or lawsuits in an effort to protect their jobs. If they do, and if you dismiss or discipline them later, be sure to base your decision on facts collected independently by you and be sure not to cite depositions or anything else connected with their lawsuits.” (”Managing: Retaliation Lawsuits are a Treacherous Slope”, New York Times, Sept. 29 — full story) (free, but registration required).

September 29 – Feds’ tobacco shakedown: “A case of fraud”. “In April 1997, Attorney General Janet Reno told the Senate Judiciary Committee that ‘the federal government does not have an independent cause of action’ against the tobacco companies. The law has not changed in the meantime, but the Justice Department has filed suit anyway…” (Jacob Sullum, National Review Online “NR Wire”, Sept. 24).

“Can you sue the government for fraud?” a Chicago Tribune editorial wants to know. “Not only does this lawsuit, which was promised by President Clinton in his State of the Union address, insult the intelligence of any thinking person, but it also continues the corruptive practice of using litigation to achieve ends that duly elected lawmakers have declined to legislate….Congress can prevent this usurpation of its authority and it ought to, by withholding money for the Justice Department to pursue the case. If Congress declines to do that, then the tobacco companies ought to refuse to settle, but should make the government prove and win its case. It might be the one great public service they ever perform.” (”How Not To Regulate Tobacco”, Sept. 24)

The editors of the New York Post call the suit “the latest prosecutorial abuse of the Racketeer-Influenced and Corrupt Organizations (RICO) law…the first time, however, that Washington has targeted an entire industry as a racketeering enterprise … profoundly disingenuous” (”The Wrong Way on Tobacco”, Sept. 24). “This administration is using the court system to extract money from the industry that it couldn’t obtain politically. Who are the real racketeers here?” asks a Detroit News editorial. “If the government wants more revenue and tighter regulations on the companies, it should try to get legislation passed — not pervert the justice system with a show trial.” (”A Case of Fraud”, Sept. 27). “There’s a deeper, disturbing trend at work — the notion that because government pays for some people’s health care, it is justified in regulating risky behavior in order to control costs,” notes the Savannah Morning News. “That’s an invitation to totalitarianism.” (”Reno butts in”, Sept. 28).

September 28 – Drastic remedy for unruly classrooms. Theodore Brown, a veteran math instructor at Savannah Technical Institute, is suing students Amanda Glover and Rechon Ross for $100 million each in punitive damages and court costs. Among allegations in his suit is that Glover “refused to purchase a textbook and disrupted the learning process by borrowing books from other students during class.” He also says the two women verbally abused and defamed him, resulting in embarrassment, humiliation and trouble with his supervisors. Brown, who is representing himself without a lawyer, was not forthcoming with specifics of the latter incidents, not wishing to “give my case away”.

Ross said that “[e]ven the sheriff’s deputy who served me with the paperwork was laughing,” but that it was harder for her to see the humor: she had been “working two jobs and I went back to school to be able to do better for my kids,” she said. “Then in my first semester I ended up with this.” In an interview with the Savannah Morning News, Brown brushed off a suggestion that the vast sums he was demanding might prove uncollectable should he win the case. “You heard about the man that only had $23 in his bank account the morning he hit the lottery for $187 million,” he said. “You never know what people have.” But, asked the reporter, “is a $100 million lawsuit a reasonable way to teach a student a lesson about proper classroom conduct?” “This is America,” he replied. (Jenel Few, “Teacher sues students for $100 million each”, Savannah Morning News, Sept. 13)

September 28 – $49 million lawyers’ fee okayed in case where clients got nothing. Dismissing all objections, the Florida Supreme Court has granted final approval to settlement of the flight attendants’ secondhand smoke class action mentioned in passing in our July 8 commentary. The case induced a promise from the tobacco industry to donate $300 million to charity; flight attendants can go ahead and press individual claims if they want, but aren’t guaranteed any results; and husband-and-wife litigators Stanley and Susan Rosenblatt of Miami were accorded (the technical term is “waltzed off with”) $49 million in fees (Jim Oliphant, “Lawyers in Fla.’s Big Tobacco Reap $50 Mil”, Miami Daily Business Review, Sept. 20)

September 28 – Andrew Tobias’s daily column. Our favorite personal finance advisor and auto insurance crusader devotes his online column today to this site. If you’re looking for the particular Overlawyered.com items listed in his column, check these archives and those for the first half of September (Sept. 11-20 dates inclusive).

September 28 – New Overlawyered.com discussion forums. Today marks the unveiling of our experimental bulletin boards which provide a way for our visitors introduce themselves, discuss current headlines, and generally hold forth. Subtopics open for discussion, with volunteer moderators, include class actions, harassment law and family law, and more volunteer moderators are encouraged to step forth. Being well behaved, our visitors all realize the ground rules that prevail in these sorts of forums (no personal attacks, copyright-trampling, undue commercialism, etc.) and being public-spirited, they call instances of such postings to the attention of moderators or other site management. Posting on the forums requires prior registration and a valid email address. Have fun. [forums now closed]

September 27 – Seesaws as museum items. Three years ago the Connecticut Supreme Court, in the case of Conway v. Wilton, casually struck down the longstanding protection that the state’s towns and cities had enjoyed against being sued over free recreational use of their facilities. Across the state, towns tore out seesaws and merry-go-rounds and closed down hiking and bicycling trails; others turned down open-space donations or gave up plans to acquire ponds and other presumed hazards. Trial lawyers dismissed all this as overreaction, declaring that towns that behaved carefully wouldn’t face an undue burden, and their influence easily blocked efforts in the state legislature to reverse the decision.

But now Dan Uhlinger in the Hartford Courant reports that the fears are coming true: even towns that spent heavily on safety precautions are being taken to court. South Windsor invested in a “$50,000, supposedly injury-proof playscape” ordered to federal safety specs but faces a suit anyway on behalf of a six-year-old who fell and broke her wrist. “It’s gotten to a point where everybody is suing towns because that’s where there’s big pockets,” said town manager Matthew Galligan. “If this keeps going, people not taking responsibility for their own kids, there won’t be any more playgrounds.”

Other recent playground suits have targeted the towns of Ellington and Winsted, the latter of which, as it happens, is the proposed site of hometown lad Ralph Nader’s Museum of American Tort Law. “You can’t swing a dead cat without being sued,” said Meriden deputy city attorney Christopher Hankins (who for that crack is going to have the Humane Society as well as the trial lawyers on his back). “Municipalities try extremely hard to make life better for citizens, but the courts strip away [liability protection]. It boggles the mind. It just goes to show no good deed goes unpunished.” (Dan Uhlinger, “Towns’ Worst Fears Realized: Suits Follow Playground Mishaps”, Hartford Courant, Sept. 24 — link now dead)

September 27 – More things you can’t have. Unpasteurized (i.e., real) apple cider from Connecticut farmer’s markets in the fall. “My insurance guy says don’t even think about trying to carry it,” said the proprietor of one booth, “because people get sick all the time and some of them are going to figure it was the cider whether it was or not.” Old-line cider presses have been closing down, he said, in favor of the industrial operations. Community square and contra dances in New England, long run by volunteers on a shoestring, are being smothered by the liability insurance hassle more than by the cost of church or hall space, callers and bands.

September 27 – New page on Overlawyered.com: What happened to personal responsibility? Eleventh and latest in our series of topical pages assembles cases in which complainants sue over risks that they or their parents could have anticipated or avoided, like playground seesaws and unpasteurized cider, and briefly explicates the slow decline of old legal precepts like assumption of risk, waiver/disclaimer of liability and contributory negligence. Definitely a page to read while nursing your steaming McDonald’s take-out coffee, if you can still find any.

September 27 – “Objection, your honor! Here’s a site you’ve got to love.” Overlawyered.com is picked as a “Planet Hot Site” this week by PioneerPlanet.com, the well-traveled website of the Twin Cities’ St. Paul Pioneer Press, a newspaper known for its leadership in covering the Net. Thanks!

September 25-26 – Not just our imagination. Thanks to Steve Milloy of the Junk Science Page for catching these items: a San Jose Mercury-News letter to the editor in all evident seriousness calls for a trial lawyer onslaught against “Big Fast Food” along tobacco lines, while a veggie-oriented group called the Physicians Committee for Responsible Medicine urges a similar jihad against “Big Meat”. (”Fast food ads take aim at kids”, letter to the editor from Matt Mascovich, Sept. 24, link now dead; “Physicians Advise Feds to Go After ‘Big Meat’ Next”, U.S. Newswire, Sept. 23).

September 25-26 – We ourselves use “sue”. So-called keyword piracy is the practice of using your competitors’ names as index terms for your website on search engines, so that people searching for your rivals’ sites end up visiting yours instead. Courts are quite likely to uphold the practice as lawful, which is lucky for three well-known presidential candidates whose websites use the technique (Tech Law Journal, Sept. 3).

September 25-26 – Give, and receive. Webzine Capitol Hill Blue says trial lawyers have nearly doubled the pace of their political contributions from the same period four years ago, dispensing $4.1 million in political contributions in first six months of 1999. “We continue to urge our whole law firm to be active in the political scene,” said prominent plaintiff’s lawyer Joseph Rice of Charleston, S. C.’s Ness, Motley, Loadholt, Richardson & Poole, which gave $303,000 in the first half of 1999, up from $248,650 during all of 1995-96. All these sums appear relatively small, however, considering that Rice’s firm alone has been estimated to be in for somewhere between $1 billion and $10 billion in tobacco fees courtesy of these same politicians, with billions going to other law firms as well. Is someone being ungrateful here? (”Trial lawyers use campaign contributions to save their bacon”, Sept. 12)

September 25-26 – Weekend reading: evergreens. Pixels to catch up with on the houseboat or hammock, if you missed them the first time around:

* Jonathan Rauch, “Tunnel Vision”, National Journal, Sept. 19, 1998 (welcome to the era of “micro-government”: “rights-based lawsuits [are] nothing less than America’s third and most extraordinary wave of regulation”) (link now dead).

* Classic, colorful accounts of lawyer-abetted accident fraud: Ashley Craddock and Mordecai Lawrence, “Swoop and squats”, Mother Jones, Sept./Oct. 1993; Alan Prendergast, “The Fall Guy” Westword (Denver), Dec. 5, 1996.

* Stephen Baskerville, “Why Is Daddy in Jail?”, The Women’s Quarterly, Winter 1999 (Independent Women’s Forum), reprinted at Fathermag.com. (”For the crime of wanting to see his child.”)

September 25-26 – Correction: name of magazine whose clips feds consider it an act of racketeering to circulate. We’ve spent so much time staring at the screen our eyesight is beginning to blur. In the Sept. 23 item below (”Feds: dissent = racketeering”) we reported in error that the charge of “Racketeering Act #18″ against cigarette companies was of their circulation of a clip from Time magazine. In fact, it was a clip from the now-defunct True magazine. Correction is incorporated below. Sorry!

September 24 – Murderers’ rights. Gerald Turner has won a settlement, its amount held confidential, of his discrimination complaint against Waste Management Inc., which had declined to hire him to work at its recycling center in Madison, Wisconsin. Turner was nicknamed the “Halloween Killer” because of his 1973 rape-murder of 9-year-old Lisa Ann French, who disappeared while trick-or-treating in Fond du Lac. He was released last year as required by law, despite a psychiatrist’s warning that he was still dangerous and despite an unsuccessful attempt by the state to revoke his parole, saying he’d waved a butcher knife at a caseworker at his Madison halfway house.

On his release Turner applied for a job with Waste Management sorting recyclables, but the company said it did not want to employ him because of his record, though it frequently hired persons released after serving time on less serious counts. He proceeded to file a complaint under the Wisconsin Fair Employment Act, one of only a few state employment discrimination statutes that establish convicted criminals as a protected class. Under the terms of the act, employers may not turn away convicts unless they are prepared to show in court, on pain of back pay and other penalties, that the job is “substantially” related to the record of criminality. Waste Management officials said the recycling job would give a worker access to various dangerous materials that frequently turn up in bins, including “weapons, used hypodermic needles, and BB guns.” They also said scout troops and school field trips regularly toured the facility, more than a dozen having visited during the past school year. However, the state Department of Workforce Development found evidence that in its view Turner had been discriminated against and said his complaint could proceed.

Thomas Snyder, the retired sheriff who’d served as special investigator in the Lisa Ann French murder, said he was “damn upset” at the news that Turner had obtained a settlement of his complaint. “[Turner] always made sure he knew his rights. He could quote them to you.” An editorial in the Milwaukee Journal Sentinel calls the settlement a “travesty”, while a letter-writer from Johnson Creek called Turner a “de facto aristocrat, with special powers, benefits and protections not allotted to mere commoners” who would apparently be able to enlist “all the power and authority of [the government] on his side and against us for the rest of his life, specifically because he raped and murdered 9-year-old Lisa Ann French.” However, Jeff Hynes, co-chairman of the Wisconsin Employment Lawyers Association, defended the law as one that “protects the rights of thousands of Wisconsin workers” and said people should not “overreact to this case”.

(Milwaukee Journal Sentinel coverage by Jessica McBride and others: “Recycler’s refusal to hire Gerald Turner is illegal, agency finds,” Aug. 25; “‘Halloween Killer’ ruling fuels convict-employment conflict”, Aug. 25; “Company’s refusal to hire Gerald Turner is illegal, agency says”, Aug. 26; “State: Company may have discriminated against ‘Halloween Killer’” (AP), Aug. 27; “Timeline of Gerald Turner case”, Aug. 27; “Turner not entitled to job” (editorial), Aug. 29; letters to the editor, Aug. 31; “‘Halloween killer’ reaches settlement with waste company” (AP), Sept. 19; “Turner settles claim over recycling job”, Sept. 20; “‘Halloween Killer’ reaches settlement with waste company” (AP), Sept. 21; “Turner exploits hiring law” (editorial), Sept. 21.)

September 24 – Feds as tobacco pushers. Columnist Andrew Glass recalls the days when “when my government superiors strongly urged me to start smoking. ‘Smoke ‘em if you got ‘em,’ the drill sergeants would tell us back in the 1950s at Fort Dix, N.J. Standing around without a glowing butt in hand during that winter could lead to orders to do something useful, like scrubbing pots….Any chance government’s suit will take note that from Civil War times until 1956, federal law required the military to provide nearly free supplies of tobacco to enlisted personnel?”

“Nor will you see anything in the papers filed in the courthouse about Clinton’s move last year to strip $15 billion in medical care and disability pay to veterans harmed by smoking….In a bid to pacify the dying veterans whose care was cut off, a provision was put in that huge highway bill that directed the Department of Veterans Affairs and Justice Department to sue the tobacco industry to pay for veterans’ smoking-related illnesses.” (”The evils of a smoking government,” Cox/Minneapolis Star-Tribune, Sept. 24).

September 24 – Hurry up, before the spell breaks. “‘A major part of this lawsuit is public attitude and I can tell you, it’s waning,” said Ron Motley, a South Carolina trial lawyer who represented Texas and 30 other states in lawsuits against the industry.” Motley complained that the Department of Justice was not making enough haste in its filing. (Mark Curriden, “Government to sue tobacco makers”, Dallas Morning News, Sept. 14).

September 23 – Feds: dissent on smoking = racketeering. Is it the most cynical act yet of the Clinton presidency, or the most incompetent act yet of Janet Reno’s tenure as Attorney General? You be the judge. Yesterday, the ironically named Department of Justice — which not long ago was accurately warning higher-ups that there wasn’t a strong enough legal basis to file a federal lawsuit against tobacco companies — proceeded to file one anyway, arguing that 1) the law should be changed by retroactive judicial fiat to provide a federal right to recoup from cigarette-makers moneys spent on smoker health; and that 2) a remarkably wide range of past statements and actions by tobacco companies, aimed at defending their business in public controversy, should now be redefined as instances of fraud and racketeering and subject to civil punishment (complaint and appendix in PDF format; links now dead).

The absurdity of the retroactive recoupment claims — and the threat they pose to everyone else, from burger chains to the proprietors of ski resorts, who could be charged with enabling risky consumer activities that drive up health bills — has by now been widely aired. Likewise with the notions that the federal government was somehow deceived about the risks of smoking, or that it was incapable of raising taxes at the time, as opposed to retroactively, if it saw fit to change the rules of the game.

Equally ominous, but less widely scrutinized, is the second theme, that an industry’s defense of its position in public controversy can now be defined as fraud and racketeering for which it can be made to pay damages. People in other lines of business should pay close attention, since 1) all lines of business get caught up in public controversy from time to time; 2) disputants in such controversies naturally tend to see each others’ assertions as false and misleading; and 3) there can scarcely be a better way to silence one side than to concoct a theory that exposes it to charges of “racketeering” for disseminating views its opponents consider erroneous.

What kinds of acts, in particular, does the Clinton Justice Department now define as “racketeering”? Scroll through the complaint’s appendix, which enumerates all 116 supposed acts of racketeering, and you find that Acts # 2, 3, 5, 6, 7, 8, 10, 12, 21, 24, and a long list of others consist of…[DRUM ROLL]…sending out press releases. Act #18, committed in 1968, consists of the Tobacco Institute’s having sent around to civic leaders a copy of an article that had appeared in the magazine True, favorable to its point of view. (We, too, have sometimes gotten really annoyed at magazine articles we disagree with, but seldom to the point of branding their distribution an act of racketeering.)

Act #31 consists of a 1973 move by the Council for Tobacco Research to support the work of a researcher who’d worked on showing that air pollution played a major role in pulmonary disease, while acts #15, 25, 194 and others consist of efforts to support research into possible therapeutic benefits of smoking, such as the reduction of stress. As it happens, neither of these research efforts proved to be an entirely dry hole — air pollution does play at least some role in pulmonary illness (if anything, it’s a role many public health activists have tended to overestimate), while the uses of smoking in helping, e.g., mental patients gain better control of their disorders are increasingly recognized.

Again and again, the complaint treats as acts of racketeering any and all moves to dispute or cast doubt on the federal government’s own pronouncements on the subject. Thus Act #33 consisted of sending out a 1974 press release which “attacked the 1964 U. S. Surgeon General’s Report on smoking and health”. Any venturing of dissent from the government’s line — however cautiously worded, even downright mealy-mouthed, it might be — seems to be judged worthy of a racketeering charge in the complaint. Thus “Racketeering Act No. 116″ reads — in its entirety — as follows:

“Racketeering Act No. 116: During 1999, the exact dates being unknown, defendant BROWN & WILLIAMSON did knowingly cause to be posted on the Brown & Williamson Internet web site a document entitled “Hot Topics: Smoking and Health Issues.” Although Brown & Williamson recognized “that, by some definitions, including that of the Surgeon General in 1988, cigarette smoking would be classified as addictive,” the company stated: “Brown & Williamson believes that the relevant issue should not be how or whether one chooses to define cigarette smoking as addictive based on an analysis of all definitions available. Rather, the issue should be whether consumers are aware that smoking may be difficult to quit (which they are) and whether there is anything in cigarette smoke that impairs smokers from