Chronicling the high cost of our legal system
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A nice way to support a family, but it’s sure too bad about CPSIA. And a Columbus, Ohio stay-at-home mom trained as an artist is afraid the law’s testing costs will sink her small-batch online business making bibs, burp clothes, blankets and similar baby items. [Business First of Columbus]
P.S. Be warned: the Grand Haven, Mich. report contains an error regarding the law’s coverage of secondhand stores (h/t reader Panthan in comments).
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Clinton Township, Michigan: “A man who was shot and allegedly beaten by party store operators he had just robbed was ordered Monday to post a $10,000 bond in order to continue his lawsuit against them.” [Macomb Daily via Obscure Store; earlier]
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The Michigan Department of Human Services says Centerville mother Lisa Snyder needs to get a license as a child care provider. [WZZM via Balko; related story now ongoing in Britain, BBC] And an update on the latter story from the BBC: “Review of babysitting ban ordered“.
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It’s leading to battles in New York and other states: “In March, Michigan gave schools a week to be certified by the state or cease operations. Virginia’s cumbersome licensing rules include a $2,500 fee — a big hit for modest studios that are often little more than one-room storefronts.” [NY Times]
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ABA Journal: “Hiring — and trusting — a disbarred lawyer known for his 1980s involvement in a bizarre condoms-for-chickens scam was a mistake, a retired Michigan judge says.”
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Few battlegrounds of legal reform have been harder-fought than that in the state of Michigan, where I grew up. On the plus side, the Wolverine State has seen three rounds of legislatively enacted litigation reform, along with the appointment by former Gov. John Engler of probably the most reform-minded state supreme court majority in the nation. On the minus side, trial lawyer interests have long been key players in state politics, often practicing a bare-knuckled brand of advocacy, and the career of colorful (and recently acquitted) Geoffrey Fieger of Southfield, arguably the Midwest’s most prominent trial attorney, is virtually a synonym for waywardness in the courtroom and out.
Now the Manhattan Institute’s Trial Lawyers Inc. series, under the able direction of Jim Copland, has published a new installment taking a look at the state’s tense legal politics. Trial lawyers are expected to work hard this year to knock off reformist Supreme Court Justice Clifford Taylor at the polls, and are also engaged in an all-out push to repeal the state’s one-of-a-kind law directing its courts in liability cases not to second-guess Food and Drug Administration determinations on pharmaceutical approval and marketing. To get up to speed on these issues and more, start here. (cross-posted from Point of Law).
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All those reimbursements of employees who donated to John Edwards? Just one vast coincidence, not a purposeful way of evading federal campaign finance laws. Now that the verdict’s in, could we please repeal the campaign finance laws in question ASAP, before some less lucky soul tries the same thing and gets sentenced to time in the slammer because his name isn’t Geoffrey Fieger and his lawyer isn’t Gerry Spence? (David Ashenfelter and Joe Swickard, “Fieger, law partner acquitted of illegal political donations”, Detroit Free Press, Jun. 2).
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After three days of deliberations, it’s not clear any resolution is near in the trial of high-profile Michigan lawyer Geoffrey Fieger and a colleague on charges of massively evading campaign-finance laws (David Ashenfelter, “Fieger jury signals verdict could take a while”, Detroit Free Press, May 30). Norm Pattis, who has attended the trial (and who hopes Fieger gets off) writes as follows (May 30):
This jury was told that it is unlawful for a person to ask another to make a contribution to a political candidate and promise to reimburse them for the contribution. There is power[ful] evidence before the jury that this is precisely what Fieger did. When I see, as I did at trial, evidence that a person making $560 a week with no prior history of political contributions makes a $2,000 contribution to their boss’s candidate, I wonder. When I see the boss reimburse the employee days after the contribution, giving in a “bonus” even enough to cover payroll tax, I am more than a little suspicious. When this pattern is repeated scores of time[s], I am like Archimedes springing from his tub: “Eureka!”A jury could easily convict Fieger.
But [celebrated defense lawyer] Gerry Spence asked them not to. In a mesmerizing performance he commanded the room as can few others. He asked for commitments from jurors, showing himself to be vulnerable so as to make jurors at ease with their own vulnerability. Spence is charisma personified.
But Spence made one mistake in his argument that could cost Fieger his freedom. “If this prosecution can happen to Fieger, it can happen to any of us,” he said. It is a powerful argument in the right case. But as jurors ponder this case, and Spence’s magic recedes, someone will, sooner or later, raise the following question: “Who was Spence talking about?” The fact is most Americans cannot conceive of giving more than $100,000 to a political candidate by using employees as strawmen. This is not a case of the Government versus Everyman. Much though it pains me to admit this, there was power in the Government’s assertion that “Fieger thinks he is smarter than you.” With wealth comes, alas, arrogance.
Perhaps forgoing a chance to reach out for libertarian allies — though no doubt wisely as a matter of criminal-defense strategy — the defendants are not taking the position that the campaign-finance restrictions are improper restrictions on political freedom that should have been struck down as unconstitutional and even now merit condemnation. Instead, to quote the Freep’s Ashenfelter, their “lawyers have said they would have never risked their legal careers or put their employees or family members in harm’s way had they known it was wrong.”
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Well, at least some doctors are hoping to discern such a trend on the strength of two data points: the case Ted has covered in which the Ohio Supreme Court struck down a $30 million verdict because of the shenanigans of attorney Geoffrey Fieger, and a Michigan case from March in which an appeals court overturned a $500,000 verdict against a Flint doctor and ordered a new trial. In the latter case the appeals court “noted the trial judge ‘valiantly and repeatedly attempted’ to restrain Konheim [Southfield, Mich., plaintiff attorney Joseph Konheim]. ‘There is a point, however, when an attorney’s deliberate misbehavior becomes so repetitive and egregious that it necessarily impacts the jury, notwithstanding the judge’s efforts. That point was reached here,’ the unanimous opinion states. It also says that Konheim belittled witnesses on the stand and made ‘irrelevant’ and ‘disparaging’ statements that diverted the jury’s attention from the case’s merits. Konheim is asking the court to reconsider.” (Amy Lynn Sorrel, “Lawyers’ misconduct triggers new liability trials”, AMedNews (AMA), May 5).
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47-year-old archaeology professor Chris Ratte is perhaps not the most careful of parents; he says he didn’t realize when he bought a $7 “Mike’s Hard Lemonade” at a Tigers game, it was an alcoholic beverage (all of 10 proof), and let his 7-year-old son Leo drink the 12-ounce bottle. A vendor noticed the boy with the drink; the boy had no symptoms of inebriation but said he was nauseated; and stadium officials, in a prime example of defensive overreaction, summoned an ambulance, which found Leo fine with no trace of alcohol in his system.
Silly enough so far, no harm, no foul, but Michigan Child Protective Services intervened, held Leo in foster care for two days (refusing to release him to the custody of his aunts, who drove from New England on short notice for just such a possibility), and forced Ratte to move out of the house until a second hearing okayed his return. If Ratte and his wife weren’t upper-middle-class academics with access to the University of Michigan Law School clinic professors, it could have been much worse. “Don Duquette, a U-M law professor who directs the university’s Child Advocacy Law Clinic, represented Ratte and his wife. He notes sardonically that the most remarkable thing about the couple’s case may be the relative speed with which they were reunited with Leo.” (Brian Dickerson, Detroit Free Press, Apr. 28 (h/t B.C.)).
Some policy proposals are for taxpayers to fund attorneys to defend parents victimized by Child Protective Services; some go so far as to call it a constitutional right, albeit one having nothing to do with the underlying text of the Constitution. But that would only treat the symptom and ossify the underlying problem of abusive government intervention into the home.
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We’ve reported before (Dec. 24-27, 2001; May 7, 2005; parallel case in New York, Jul. 10, 2004) on the lawsuit charging Michigan high school sports directors with sex discrimination for scheduling girls’ sports in different seasons than boys’. Such cases are subject to “one-way” attorney fee shifting (plaintiffs collect if they win, but need not fear paying if they lose) and the rules for fee calculations are generous. Now the judge has approved a plaintiff’s fee that the athletic directors’ association say threatens to push their group into bankruptcy; opponents say it’s their own fault for resisting so long. Nearly $3 million in fees plus interest are set to go to Kristen Galles, a solo practitioner in Alexandria, Va., whose large number of billed hours at $390/hour may relate to her having worked without a paralegal or secretary. (Julie Mack, “Michigan High School Athletic Association owes $7.4 million in legal fees, interest to lawyers who won case to change the girls sports season”, Kalamazoo Gazette, Apr. 21)(via ABA Journal); “Athletic Group Ordered To Pay $7M”, AP/LexisOne, Apr. 2).
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My latest Liability Outlook examines the problems of retroactive lawmaking and litigation, especially reviver statutes, and even Obama fans will find something to like:
The controversy over whether and how to seat the Michigan and Florida delegations at the Democratic National Convention shows the danger of changing rules midstream and upsetting settled expectations. Reviver statutes not only obviate statutes of limitations, which are a critical aid to justice, by “reviving” claims that have expired or never existed, but they can also pose the danger of undoing the benefits of future prospective legislation. In evaluating laws, the issue is not merely one of retroactivity, but of the importance of promoting legal certainty. For example, the FISA Amendments Act, S. 2248, while ostensibly acting retroactively to grant immunity to telecommunications companies that cooperated with the Bush administration’s antiterror surveillance program, works to protect settled expectations.
Among matters discussed: litigation against the Catholic church over child abuse by priests and the Michigan legislature’s proposed retroactive repeal of pharmaceutical tort reform in H.R. 4045. Walter has previously discussed the subject.
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Point of Law Volokh