October 15 – Reform stirrings on public contingency fees. U.S. Chamber of Commerce readies a push to curb governments’ growing habit of teaming up with private lawyers to sue businesses (tobacco, guns, lead paint) and share out the booty. “We think this is one of the biggest threats facing American industry today,” says Jim Wootton, executive director of the Chamber’s Institute for Legal Reform. Its proposed reform package targets such abuses as political corruption (states would be barred from hiring an outside lawyer who “contributed more than $250 to the campaign of a public official”) and retroactivity (states couldn’t enact legislation affecting their chances of winning pending or contemplated suits).
Our editor’s take on this issue appeared in his 1991 book The Litigation Explosion, excerpted at the time in Policy Review (parts one, two). Briefly: contingency fees for representing governments are a corrupting analogue to the widely deplored practices of “tax farming” (letting tax collectors keep a share of the revenue they take in) and of hinging traffic cops’ bonuses on the volume of tickets they write. There’s no historical reason to permit such devices at all: lawyer’s contingency fees developed in this country as an exception arising from our lack of a loser-pays rule (most other countries flatly ban them as unethical) and until not long ago were carefully limited here to the cases where they were considered a necessary evil, in particular cases where an impoverished client could not afford hourly fees. That ruled out contingency representation of governments. In addition, several court decisions suggest that it violates due process to delegate public law enforcement functions to persons financially interested in their outcomes, which is why we don’t allow D.A.s year-end bonuses based on their success in nailing defendants.
Interesting gossip tidbit from today’s front-page New York Times coverage of the reform push: Prof. Jack Coffee of Columbia says he “would not be surprised if” public entities like cities signed up with the trial lawyers’ campaign to sue HMOs. (Barry Meier and Richard A. Oppel, Jr., “States’ Big Suits Against Industry Bring Battle on Contingency Fees”, New York Times, Oct. 15 — full story)
October 15 – Dog searches of junior high lockers. Yes, they’re doing random canine sniffs of twelve-year-olds’ possessions in York, S.C., not on any focused suspicion but just on principle, maybe to remind kids not to expect privacy: “It’s just a further measure to enhance safety at the schools,” beams principal Ray Langdale (Tracy Smith, “K-9 debuts in locker search at junior high”, Rock Hill, S.C. Herald, Oct. 12).
October 15 – A mile wide and an inch deep. “The Environmental Protection Agency has placed a portion of the Platte River in central Nebraska on the ‘Impaired Waters’ list. Their reason: It gets too hot. The source of the heat: the sun….” (“The Miller Pages” by Jeff Miller, webzine, Sept. 30 — full column)
October 14 – Covers the earth with litigation. Trial lawyers’ long-prepared campaign against lead paint and pigment makers gets its liftoff with the state of Rhode Island agreeing to serve as the first designated statewide plaintiff, and doubtless not the last. Picked by attorney general Sheldon Whitehouse to represent the state on a contingency fee basis are Providence’s Decof & Grimm and Charleston, S.C.’s Ness, Motley, Loadholt, Richardson & Poole, the latter of which is reaping somewhere between hundreds of millions and billions of dollars (estimates vary) from its role in earlier rounds of asbestos and tobacco litigation. Named as defendants are the Lead Industries Association, an industry trade group, along with eight manufacturers: American Cyanamid, Atlantic Richfield, duPont, The O’Brien Corporation, Imperial Chemical Industries’ Glidden Co., NL Industries, SCM Chemicals, and Sherwin-Williams. Lawyers are also planning to enlist cities as plaintiffs in the manner of the gun litigation, perhaps starting with Milwaukee, where a favorable state law may help their cause. Baltimore asbestos/tobacco tycoon Peter Angelos, who owns the baseball Orioles, has filed suit in Maryland; and a suit against paint makers by New York City has also been chugging along in the Gotham courts for years with little publicity or apparent success.
Sources (most links now dead): Gillian Flynn, AP/Washington Post, Oct. 13; David Rising, “R. I. Sues Lead Paint Makers”, Washington Post, Oct. 13; Yahoo/Reuters, “R.I. files suit against 8 lead paint makers”, Oct. 13; Whitehouse’s Oct. 13 press release; companies’ Oct. 13 press release; Baltimore: “Lawyer Goes After Lead Paint Makers,” AP/Washington Post, Sept. 21; Felicia Thomas-Lynn, “Pittsburgh lawyers pick Milwaukee for building lead-paint suit,” Milwaukee Journal-Sentinel, June 2; Greg Borowski, “City Moves Toward Suing Paint Industry”, Milwaukee Journal-Sentinel, Oct. 6; and coverage on the industry site Paints and Coatings.com.
October 14 – Injunctive injustice. Restraining orders in family and divorce law can protect potential targets of domestic abuse, but they can also wind up becoming the instrument of legalized violence themselves. “Men have been jailed for sending their kids a Christmas card or returning a child’s phone call,” comments Detroit News columnist Cathy Young, author of the recent Ceasefire!: Why Women and Men Must Join Forces to Achieve True Equality. “Harry Stewart, a lay minister who has never faced criminal charges of assault, is serving a six-month jail term for violating a restraining order. His crime? When bringing his 5-year-old son back to the mother after visitation, he walked the boy to the apartment building and opened the front door. The restraining order forbade him to exit his car near his ex-wife’s residence.”
Procedural protections for targets are few, and judges can often issue temporary restraining orders ex parte without either the presence of the defendant or any allegation of actual violent behavior. “In 1993, Elaine Epstein, then president of the Massachusetts Bar Association, warned that ‘[in] many [divorce] cases, allegations of abuse are now used for tactical advantage’” and that courts were handing down restraining orders too readily. Some fathers’-rights activists in the Bay State have recently launched a wide-ranging legal challenge to the state’s family-court practices. “Charges of domestic violence, by women or men, must be taken seriously,” writes Young. “But sensitivity to victims should never turn into a presumption of guilt.” (“Do ‘protection orders’ actually violate civil rights?”, Detroit News, reprinted Jewish World Review Sept. 30 — full column)
October 14 – 60,000 pages served on Overlawyered.com. Traffic zips right along, both on the fast news days and the slow … thanks for your support!
October 13 – “Doctor sues insurer, claims sex addiction.” “A former Paducah gynecologist who claims he is a sex addict is suing his insurance company to collect disability benefits because he can’t practice his specialty,” reports the Louisville Courier-Journal. Dr. Harold Crall voluntarily gave up his practice after instances of inappropriate contact with patients came to light; he now treats male patients at the Kentucky department of corrections and is under orders from a state licensing board never to see female patients without a chaperone. His lawsuit in federal court says the Provident Life & Accident Insurance Co. should pay him disability benefits because his sexual addiction prevents him from pursuing his chosen profession. (Mark Schaver, Louisville Courier-Journal, Oct. 8)
October 13 – “This wretched lawsuit”. The Clinton Administration’s new tobacco suit “is, without a doubt, the most impressive legal document of our day,” writes Jonathan Rauch in National Journal. “Examining this lawsuit is like watching a drunken driver who, before crashing into a church during high Mass, also manages to shred an ornamental garden, knock down two traffic lights, uproot a fire hydrant, and clip a police station.” To begin with, given its revenues from cigarette taxes and its savings on pension benefits, “[t]he government suffered no net damages. There is nothing to recover. Just the opposite.” Moreover, the government undertook the expenses of Medicare at a time when it was well aware that smoking was a cause of disease. If it followed the rules, the Clinton Justice Department would have no legal case at all; so it’s trying to pull what the Florida legislature pulled and rewrite the rules retroactively to turn a losing case into a winner.
All of which leads up to the suit’s “brassy” finale: its attempt to redefine an unpopular interest group’s issue advocacy as itself unlawful, as in the 25 racketeering counts that are based simply on the tobacco industry’s issuance of press releases. The columnist generously quotes the “entertaining and often startling Web site www.overlawyered.com” (blush) as having observed that “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.” (see our Sept. 23 commentary). In short, Rauch writes, by turning the anti-tobacco crusade into an assault on freedom of political expression, the administration “has given all Americans — … not excluding tobacco-bashers — a vital stake in the defeat of this wretched lawsuit.” (“Bob Dole, Tobacco Racketeer”, Oct. 1 — link now gone). For the columnist’s 1993 book Kindly Inquisitors, which Kirkus called a “compelling defense of free speech against its new enemies”, click here.
October 13 – Pokémon cards update. Adorable Japanese monster craze for the younger set, or illegal gambling racket ripe for class-action lawsuits? An alert reader points out regarding our Oct. 1-3 commentary that while the Nintendo company owns licensing rights to Pokémon characters, it’s smaller companies that actually make the collectible card packs that lawyers are suing over (the lawsuits’ theory is that since some cards are deemed more valuable than others, buying a pack of the cards constitutes “gambling”). Each pack, this reader tells us, contains “precisely one ‘rare’ card.” For those who want to see what the full cast of characters looks like, we found a copiously illustrated guide at the Topeka Capital-Journal‘s site (link now dead).
“If Americans were this obsessed with suing everybody in the 1950s, then the parents of millions of baby boomers would have taken Topps (TOPP) and other baseball-card makers to court because kids spent countless dollars trying to track down an elusive Mickey Mantle rookie card,” writes Paul La Monica at Smart Money. Meanwhile the aggressive San Diego class-action firm of Milberg, Weiss, Bershad, Hynes and Lerach, which has indeed been filing lawsuits against Topps, the National Football League, Major League Baseball and other defendants on theories that the sale of trading cards to kids amounts to a gambling enterprise, ran into an embarrassment Sept. 23 when it discovered that it had announced its intention to sue one of its own clients, a company named 4Kids that is among the clients in Milberg Weiss’s little-known practice representing (as opposed to suing) businesses. “If you think this makes me happy, it doesn’t,” said Melvyn I. Weiss, New York-based co-managing partner of the firm; the firm was obliged to withdraw from the action. (San Diego Union-Tribune coverage: Bruce V. Bigelow, “Suit alleges Pokemon is illegal game”, Sept. 21; Don Bauder, “Law firm discovers it sued own client in Pokemon case”, Sept. 24.) (our Oct. 1-3 commentary)
October 13 – Bright future in some areas of practice. Even his own lawyer describes Paul Converse as a “pain in the neck.” But should he be awarded a license to practice law anyway? The Nebraska State Bar Commission says no, citing his consistently “abusive, disruptive, hostile, intemperate, intimidating, irresponsible, threatening or turbulent” behavior in school. Converse’s lawyer says his client’s civil rights are being violated and has appealed to the state’s high court (Kevin O’Hanlon, “Temperament Bars Man From Law Test”, AP/Washington Post, Sept. 29; Aileen O’Connell, “Setting the Bar High”, Newsweek, Sept. 30).
October 12 – Proud history to end? Sam Colt invented the revolver, but his namesake Colt’s Manufacturing Company is retreating from much of its business of selling handguns to consumers. “It’s extremely painful when you have to withdraw from a business for irrational reasons,” said an executive with the company. The only municipal lawsuit to reach the merits, Cincinnati’s, was soundly rejected by the judge last week (see Oct. 8 commentary, below), but given America’s lack of a loser-pays rule the process itself becomes the punishment: the May 17 New Yorker cites estimates that defense costs to the industry as a whole in the suits could soon run a million dollars a day.
Quoted in APB News, spokeslawyer John Coale denied that the suits would shut down the handgun industry. “It can’t be done, and it’s not a motive, because as long as lawful citizens want to buy handguns, and as long as the market’s there, there’s going to be someone filling it,” he said. But surely Coale is aware of the thorough suppression by our litigation system of other products that remain lawful. It’s completely lawful to sell the morning sickness drug Bendectin, for example, and many consumers would be glad to buy it, but no company is willing to produce it for U.S. sale because trial lawyers have been too successful in organizing lawsuits against it.
Upwards of a hundred workers are expected to be laid off at Colt’s Hartford-area facilities. The company will continue to sell to the police and military, perhaps foreshadowing future arrangements in which only government agencies will be lawfully allowed to obtain small arms. (“Colt exiting consumer handgun business — Newsweek”, CNN/Reuters, Oct. 10; Hans H. Chen, “Colt’s Handgun Plan Heats Up Debate”, APB News, Oct. 11). (Note: the Colt company took issue with some aspects of the Newsweek report. It said its dropping of various handgun lines did not constitute an exit from the consumer market, gave a number for layoffs of 120-200 rather than 300, as first reported, and suggested that the lines would have been dropped at some point even without the litigation pressure. See our Nov. 18-19 commentary, as well as Nov. 9)
October 12 – Property owners obliged to host rattlesnakes. “A New York court recently ruled that New York’s endangered species law requires private landowners to host threatened rattlesnakes on their property.” Family-owned Sour Mountain Realty had erected a “snake-proof” fence with the rattlers on one side of it and its mine on the other, but the state Department of Environmental Conservation pointed to a provision of New York law that prohibits “disturbing, harrying, or worrying” an endangered species and said that the owners were violating that provision by prevent the creatures from traversing the land freely. A court agreed and ordered Sour Mountain to tear down the fence, thus giving the rattlers a sporting chance to “disturb, harry or worry” the humans who’d been on the other side of it. An appeal is pending (Pacific Legal Foundation, Key Cases, Environmental Law Practice Group)
October 12 – After the HMO barbecue. Our favorite syndicated columnist explains why last week’s House passage of a bill promoting lawsuits over denial of coverage was a really bad idea. “Managed care arose because we can’t have it all, much as we would like to.” Now, thanks to the shortsightedness of America’s organized medical profession, we’re back on track toward an eventual federal takeover of the area. (Steve Chapman, “The Unadvertised Wrongs of ‘Patients’ Rights’”, Chicago Tribune, Oct. 10)
October 12 – Down the censorship-by-lawsuit road. First Amendment specialist Paul McMasters decries the current courtroom push to assign liability to entertainment companies for acts of violence committed by their viewers or readers. “The idea that we can blame books, movies and other media for crime turns the courtroom search for justice into a search for blame and deep pockets….Down that road lies cultural homogeneity, social and intellectual stagnation, and the possibility that we will be not only living with the tyranny of the majority but the tyranny of the aggrieved.” (“Will we trade our freedom for civility?”, Freedom Forum, Sept. 27)
October 12 – Free-Market.Net “Freedom Page of the Week”. We’re proud to be named this week’s honoree in Free-Market.Net‘s “Freedom Page of the Week” series. Editor Eric Johnson calls Overlawyered.com “thorough, well-organized, and, if you are capable of enjoying an occasional laugh at the ridiculousness of some lawsuits, very entertaining….truly invaluable to anyone interested in the absurdities of our legal system”. In turn, we highly recommend Free-Market.Net, a browser’s delight of libertarian resources on almost every conceivable policy topic as well as a one-stop jumping-off point to reach just about any liberty-oriented website you might be looking for. (full award text)
October 11 – My dear old tobacco-fee friends. Among the first dozen state attorney generals to jump on the tobacco-Medicaid suit bandwagon — and the very first Republican — was Kansas’s Carla Stovall. To represent the state, Stovall hired three law firms, two from out-of-state and one from within. The two out-of-state firms were Ness, Motley of Charleston, S.C. and Scruggs, Millette of Pascagoula, Miss., both major players in the suit representing a large number of other states. And the lucky Kansas firm selected as in-state counsel, entitled to share with the others in a contingency fee amounting to 25 percent of the state’s (eventual estimated $1.5 billion-plus) haul? Why, that firm just happened to be Entz & Chanay of Topeka, Attorney General Stovall’s own former law firm. Stovall has insisted that her old firm was the only one willing to take the case on the terms offered. It’s still unclear what total fees the three firms will reap from the Kansas work, but the sum very likely will exceed the $20 million that the state legislature vainly (after the ink was dry on the contingency contract) attempted to decree as a fee cap for the lawyers. This spring, Stovall stared down Rep. Tony Powell (R-Wichita), chairman of an appropriations panel in the Kansas House, who’d sought to impose competitive-bidding rules as well as a requirement of lawmaker approval on the state’s future letting of outside law-firm contracts. (Topeka Capital-Journal coverage: Roger Myers, “Fees likely to exceed cap”, Jan. 22; “State will be rewarded for early entry to suit”, March 12; Jim McLean, “Battle between Stovall, critic a draw”, March 13) (see also commentaries on New Jersey, Wisconsin tobacco fees)
October 11 – Free Kennewick Man! The Native American Graves Protection and Repatriation Act (NAGPRA) is “a 1990 law intending to protect Indian burial sites and help tribes reclaim the remains of ancestors stored in museums”. But the law has emerged as a serious threat to the pursuit of pre-Columbian archeological knowledge (as well as an infringement of property owners’ rights). Symbolic is the fate of 9,000-year-old Kennewick Man, discovered in 1996 but soon seized by the U.S. Army Corps of Engineers on behalf of Indian claimants — even though, astonishingly, the skeleton appeared to be of Caucasian descent. “If [the battle over similar relics] continues much longer,” writes John J. Miller, “irreplaceable evidence on the prehistoric settlement of the Americas will go missing, destroyed by misguided public policy and the refusal to confront a troubling alliance between multiculturalism and religious fundamentalism.” (Intellectual Capital, Sept. 23)
October 11 – Are you sure you want to delete “Microsoft”? “Welcome to the postmodern world of high-tech antitrust where big is once again bad, lofty profit margins are a wakeup call to government regulators, executives are brought to heel for aggressively worded e-mails, pricing too high is monopolistic, pricing too low is predatory, propping up politically wired competitors is the surreptitious aim, bundling products that consumers want is illegal, and successful companies are rewarded by dismemberment.” The Cato Institute’s Robert Levy blasts the Microsoft suit (“Microsoft Redux: Anatomy of a Baseless Lawsuit”, Cato Policy Analysis, Sept. 30 — full paper).
October 11 – State supreme courts vs. tort reform. J.V. Schwan, for the Citizens for a Sound Economy Foundation, decries the quiet evisceration of no fewer than 90 tort reform statutes by state supreme courts, most recently Ohio’s, which refuse to acknowledge their legislatures’ role as makers of the civil law. Whatever happened to the separation of powers? (“Rapid-Fire Assault on the Separation of Powers,” Citizens for a Sound Economy Foundation Capitol Comment #251, Sept. 9)
October 9-10 – The Yellow Pages indicator. “For a number of years I have been using a simple test to gauge the health of local culture and economy, as well as that of the country in general. I grab the yellow pages and tally up the number of pages advertising attorneys and compare them with the number and types of ads for doctors, engineers and insurance companies. I recently counted 62 pages of attorneys in my Tampa area, with 20 of the pages being full page, multi-color ads that are exorbitantly expensive to run….When there are nearly twice as many lawyers and legal firms than doctors and engineers combined, this is not a good sign.” (“Please Don’t Feed the Lawyers,” Angry White Male, Sept. 1999)
October 9-10 – Piggyback suit not entitled to piggybank contents. Last month the Second Circuit U.S. Court of Appeals reversed an award of $1 million in legal fees to class action lawyers who had sued Texaco in a “piggyback” shareholder action over its involvement in charges of racial discrimination. Writing for a unanimous panel, Senior Judge Roger Miner said the proposed settlement involved “therapeutic ‘benefits’ that can only be characterized as illusory” and that plaintiff’s counsel, which included the firm of Milberg Weiss Bershad Hynes & Lerach and several other law firms, had “in an effort to justify an award of fees” emphasized the extreme long-shot nature of the contentions they had made on behalf of shareholders, but had succeeded only in raising the question of whether those contentions “had no chance of success and, accordingly, were made for the improper purpose of early settlement and the allowance of substantial counsel fees.” (Mark Hamblett, “$1 Million Fee Award Reversed”, New York Law Journal, Sept. 15)
October 9-10 – Grounds for suspicion. Reasons the Drug Enforcement Administration has given in court for targeting individuals, according to one published list:
Arrived in the afternoon
Was one of the first to deplane
Was one of the last to deplane
Deplaned in the middle
Purchased ticket at airport
Made reservation on short notice
Bought coach ticket
Bought first class ticket
Used one-way ticket
Used round-trip ticket
Carried no luggage
Carried brand-new luggage
Carried a small bag
Carried a medium-sized bag
Carried two bulky garment bags
Carried two heavy suitcases
Carried four pieces of luggage
Dissociated self from luggage
Traveled with a companion
Acted too nervous
Acted too calm
Walked quickly through the airport
Walked slowly through the airport
Walked aimlessly through the airport
Suspect was Hispanic
Suspect was black female.
– Sam Smith’s Progressive Review, July 30, quoting David Cole in Insight. We’ve been unable to track down Cole’s article or any earlier appearances of the list; further clues on the list’s provenance and authenticity are welcome.
October 8 – Victory in Cincinnati. The first of the municipal gun lawsuits to reach a decision on the merits results in a sweeping victory for gun manufacturers and a stinging rebuke to the city of Cincinnati, which had sued the makers along with three trade associations and a distributor. “The Court finds as a matter of law that the risks associated with the use of a firearm are open and obvious and matters of common knowledge,” writes Hamilton County Common Pleas Judge Robert Ruehlman in a five-page opinion dismissing the city’s claims in their entirety. “[They] cannot be a basis for fraud or negligent misrepresentation” or for failure to warn. Nor does the theory of nuisance apply since gun makers and distributors “have no ability to control the misconduct of [the responsible] third parties”. Moreover, the city’s complaint had attempted to “aggregate anonymous claims with no specificity whatsoever,” and was an attempt to pursue essentially political goals without the need to consult voter majorities: “In view of this Court, the City’s complaint is an improper attempt to have this Court substitute its judgment for that of the Legislature, something which this Court is neither inclined nor empowered to do.” Judge Ruehlman dismissed the lawsuit “with prejudice,” which means that if the city loses an expected appeal it will be barred from filing a new or amended suit. (Kimball Perry, “Judge tosses out city’s gun suit”, Cincinnati Post, Oct. 7; Dan Horn and Phillip Pina, “Judge dismisses city’s gun lawsuit”, Cincinnati Enquirer, Oct. 8; John Nolan, “Ohio judge dismisses Cincinnati’s lawsuit against gun industry”, AP/Akron Beacon Journal, Oct. 7).
October 8 – Demolition derby for consumer budgets. Higher car insurance premiums are on the way, warns Consumer Federation of America automotive expert Jack Gillis, because of an Illinois jury’s decision on Monday that it was improper for State Farm, the nation’s largest auto insurer, to purchase generic rather than original-brand replacement parts when reimbursing crash repairs. While the insurer plans to appeal the decision, it has in the mean time changed its policy and agreed to buy original-maker parts, which are already more expensive than generics and are likely to become more so now that GM, Toyota and other original-brand makers can contemplate the prospect of a legally captive market obliged to pay virtually any price they care to charge for replacement hoods and other items. The jury voted $456 million in supposed damages, a number built up from various accounting fictions; additional damages based on purported fraud are yet to be decided. Because State Farm is a mutual enterprise that periodically returns surpluses to customers in the form of dividends, eventual success on appeal for the class action would mostly shift money around among policyholders’ pockets (minus big fees for lawyers), for the sake of driving up the cost structure of providing coverage.
Various consumer groups often at odds with the auto insurance industry took State Farm’s side in the case, to no avail. The use of generic parts has been standard practice among auto insurers; Ann Spragens of the Alliance of American Insurers found it “particularly objectionable” that the jury was allowed to second-guess a practice that “state insurance regulators have examined time and again and have permitted to be followed”. Though filed in state court, the class action presumed to set policy nationwide, and tort reformers said the case illustrated the need to move nationwide class actions into federal court, as a pending bill in Congress would do. (“No replacement parts for State Farm”, AP/Washington Post, Oct. 8; Keith Bradsher, “Insurer Halts Disputed Plan for Coverage of Auto Repairs”, New York Times, Oct. 8; Michael Pearson, “State Farm Verdict Angers Industry”, AP/Washington Post, Oct. 5.) Update Aug. 19, 2005: Ill. high court unanimously decertifies class and nullifies $1.2 billion award.
October 8 – White-knuckle lotto. Yesterday a federal jury awarded 13 American Airlines passengers a total of $2.25 million for psychological trauma suffered when a 1995 flight from New York to Los Angeles ran into a thunderstorm over Minnesota, experienced 28 seconds of severe turbulence and had to make an emergency landing in Chicago. The award appears to be the biggest yet for emotional distress in airliner incidents; none of the passengers sued for serious personal injuries. Those onboard included movie director Steven Spielberg’s sister Nancy, who with her two small children was awarded a collective $540,000; Louis Weiss, the retired chairman of the William Morris Agency, who with his wife was voted a collective $300,000; and Garry Bonner of Hackensack, N.J., who co-wrote the song “Happy Together” for the Turtles. (Gail Appleson, “Spielberg’s sister gets damages from airline”, Reuters/Excite, Oct. 7, link now dead; Benjamin Weiser, “Airline Ruled Liable for Distress on Turbulent Flight”, New York Times, Oct. 8, link now dead).
October 8 – Star hunt. Clever way for Southern California attorneys to fulfill their pro bono publico charitable obligation: donate free assistance to screenwriters or musicians looking for their first sale or deal. That way, once the clients are established, the lawyers come into a lucrative future vein of paid work. Should this sort of thing really be called pro bono at all? (Di Mari Ricker, “When Pro Bono Is More Like an Investment”, California Law Week, Sept. 27)
October 7 – Yes, it is personal. “I’M AN ENGINEER. If you believe in stereotypes, I’m a mild-mannered egghead with a pocket protector. But if you believe the lawyers, I’m a killer.” Despite the fiction that liability suits are only aimed at faceless companies and enable society to spread risk, etc., a real-life community of individual design professionals does in fact feel a keen sense of personal accusation — and of injustice — when juries are fed dubious charges of auto safety defects (Quent Augsperger, “Lawyers declare war on automotive engineers”, Knight-Ridder/ Tribune/ Detroit Free Press, Oct. 5 — full column).
October 7 – Kansas cops seize $18 grand; no crime charged. The Topeka Capital-Journal reports that county sheriffs outside Emporia found and seized $18,400 after searching and having a dog sniff a four-door Ford Tempo that was traveling on Interstate 35. No arrests were made, and the two occupants of the car, who hail from St. Louis and El Paso, Tex., have not been charged with any offense. Forfeiture law allows law enforcers to seize money on suspicion that it’s linked to crime, and the owners must then sue to get it back. The officer who made the stop found the money in a hidden compartment in the vehicle, a circumstance he seemed to think constituted a crime in itself, but an attorney for the county says he isn’t aware of any law against hidden compartments. (“Lyon County Sheriff’s Department seizes more than $18,400 on I-35″, CJ Online, Aug. 21; Jon E. Dougherty, “Is possession of cash a crime?”, WorldNetDaily, Sept. 14).
October 7 – Family drops Sea World suit. The family of Daniel Dukes has voluntarily dropped its lawsuit against Sea World over Dukes’ death from hypothermia and drowning while apparently taking an unauthorized dip with the largest killer whale in captivity (see Sept. 21 commentary). No explanation was forthcoming, but a park spokesman said a settlement had not been paid. (“Killer Whale Lawsuit Is Dropped”, Excite/Reuters, Oct. 5)
October 7 – Israeli court rejects cigarette reimbursement suit. “Tel Aviv District Court Judge Adi Azar ridiculed the suit, saying that accepting the claim would make it impossible to sell anything but lettuce and tomatoes in Israel, the local army radio reported.” Could we bring that judge over here, please? (“Health Fund Loses Case Against Cigarette Manufacturer”, AP/Dow Jones, Sept. 15 — full story)
October 7 – Copyright and conscience. Goodbye to the Dysfunctional Family Circus, a four-year-old parody site which posted artwork panels of the familiar “Family Circus” cartoon and invited readers to submit their own new (often rude and tasteless) captions for them. Lawyers for King Features, which owns rights to the cartoon, lowered the boom last month, leading to coverage in the Arizona Republic, AP/CBS (links now dead), Wired News, Phoenix New Times, Editor & Publisher, and, among webzines, the ineffably named HPOO: Healing Power of Obnoxiousness. Most recent development: though advised by some that copyright law’s liberal parody exemption might afford him some opening for a defense, webmaster Greg Galcik decided to fold after he spoke on the phone for an hour and a half with Bil Keane, cartoonist of the real-life “Family Circus”, heard firsthand that the parody had made Keane feel really bad about the use to which his characters had been put, and decided he hadn’t the heart to continue.
October 7 – Knock it off with that smile. “There’s nothing funny about this injury,” said attorney Mark Daane, who’s representing University of Michigan social work professor Susan McDonough in her lawsuit against Celebrity Cruises. The suit contends that if the cruise line had taken better care, a passenger on an upper deck would not have dropped a cumbersome Coco Loco specialty drink over the railing, thence to descend on Ms. McDonough’s head. The drink is served in a hollowed-out coconut and comes with a little parasol. In August a federal judge declined to dismiss the lawsuit, which seeks over $2 million for brain trauma. We told you to cut it out with the smile already (Frances A. McMorris, “A Loaded Coconut Falls Off Deck, Landing One Cruise Line in Court”, Wall Street Journal, Sept. 13 — requires online subscription).
October 5-6 – “Big guns”. October column in Reason by Overlawyered.com‘s editor explores the origins of the municipal firearms litigation (the first point to get clear: it wasn’t the mayors who dreamed it up.) Valuable accounts that appeared in the New Yorker and The American Lawyer over the summer establish the close links in personnel and technique between the anti-gun jihad and the earlier tobacco heist, including key methods of manipulating press coverage and enlisting the help of friendly figures in government (full column). Also in the same excellent magazine, the online “Breaking Issues” series has come out with a new installment covering the federal tobacco suit (Sept. 23).
October 5-6 – State of legal ethics. Less than three months to go before entries close, and the law firm of Schwartzapfel, Novick, Truhowsky & Marcus P.C. of Manhattan and Huntington, L.I. holds the lead in the race for most reprehensible law-firm ad of 1999. Its prominent full-page ad near the front of the Sept. 20, 1999 issue of New York magazine beckons unwary readers into the heartbreaking, destructive meltdown that is will-contest litigation. Printed against a background picture of a serene blue sky (or are those storm clouds?) the copy reads: “Bring back to life a lost inheritance. If you believe that a will is invalid, that your rights in an estate or trust have been impaired or need advice to explain your rights, please call us today at [number].” Won’t enough warfare go on among former loved ones without giving it artificial encouragement? Shame on New York for printing this one.
October 5-6 – Chief cloud-on-title. Speaking of destructive forms of litigation, redundant though that phrase may be, are there many kinds that are worse than the revived assertion of old Indian land claims in long-settled communities? In upstate New York, Indian and non-Indian communities that have lived together peaceably for generations are now a-boil with rage, in what some locals (no doubt hyperbolically) call a mini-Balkans or Northern Ireland in the making. Repose and adverse possession count for surprisingly little in the eyes of a legal system that seems to welcome each new proposal for the dispossession of generations’ worth of innocent Euro-descendant inheritors. Old friendships have broken up, petty vandalism and threats are escalating, and — for all our legal establishment’s fine language about how litigation provides an alternative to conflict in the streets — the lawsuits are clearly exacerbating social conflict, not sublimating it. (Hart Seely and Michelle Breidenbach, “CNY communities split over land claims”, Syracuse Online, Sept. 26) (see also Oct. 27, Feb. 1 commentaries)
October 5-6 – FCC as Don Corleone. “They are engaged in shakedowns, extortions, and things that fall outside the formal regulatory process” That’s strong language to use about the Federal Communications Commission, the often-considered-dull regulatory agency in charge of broadcast, telephone, cable, and the Internet. It’s even stronger language considering that it comes from one of the FCC’s own commissioners, Harold Furchtgott-Roth, the only economist among the panel’s five members. Speaking at a Wyoming conference, Mr. Furchtgott-Roth explained that the commission exploits its discretion to withhold permission for mergers and other actions in order to levy unrelated demands that service be extended to politically favored communities. (Declan McCullagh, “The Seedy Side of the FCC”, Wired News, Sept. 28)
October 5-6 – This side of parodies. It’s always a challenge to come up with extreme fictional accounts of litigation that outrun the extreme real-life accounts. The online Hittman Chronicle visualizes the results of a legal action filed by a protagonist who was “in the middle of a three day drinking binge when he tried to clean out his ear with an ice pick”. Editor Dave Hitt says it was inspired by a story on this page… (“Pick Your Brain”, August — full parody)
October 4 – Brooklyn gunman shoots three, is awarded $41 m. A jury last week awarded $41.2 million to Jason Rodriguez in his excessive-force suit against New York City. Rodriguez was shot and paralyzed by off-duty police officer David Dugan in an incident in which Rodriguez had been “armed with a gun and firing at a number of individuals,” said Police Department spokeswoman Marilyn Mode. Rodriguez’s lawyer acknowledged that his client had just shot three persons at the time of his apprehension but said the three had assaulted him and that he had tried to surrender. Rodriguez later pleaded guilty to charges of reckless endangerment over the shootout. A New York Post editorial calls it “appalling” that he “should end up profiting from the aftermath of an incident in which he shot three people”. (Bill Hutchinson, “City Loses $41 M Suit to Shooter”, New York Daily News, Oct. 1; “The Growing Need for Tort Reform”, editorial, New York Post, Oct. 2). Compare New York’s “mugger millionaire” case, in which Bernard McCummings was awarded $4.8 million after he committed a mugging on the subway and was shot by police trying to flee.
October 4 – Not so high off the hog. Will big livestock operations join the list of targets of mass tort actions? Amid publicity about the baneful environmental effects of large-scale hog farming, 108 Missouri neighbors of a big Continental Grain swine operation joined in a suit charging that it had inflicted on them “horrendous odor, infestations of flies, water contamination and medical problems” up to and including strokes and a heart attack. Their lawyers saw fit to file the action 200 miles away in downtown St. Louis, a distinctly non-agricultural (but pro-plaintiff) jurisdiction. After a three-and-a-half-month trial, the jury there returned an award of $5.2 million — a substantial sum, but far less than the neighbors said was due them.
Writing in Feedstuffs magazine, attorney Richard Cornfeld of Thompson Coburn, who handled Continental’s defense, outlines some of the reasons the case did not prove as strong as it might have sounded. While residents said they were fearful the farms had tainted their water supply, most hadn’t bothered to order simple $15 tests from the state, and when they had the tests had come back negative. And though Continental admitted there was sometimes an odor problem, neighbors who did not sue testified that they rarely smelled it and that it wasn’t severe. Neighbors came to hunt and fish amid the hog farms, and some of the plaintiffs continued to buy more land near the farms, build decks onto their homes and host large social events despite the allegedly unbearable odor. “One woman opened a restaurant with outdoor dining near some of the plaintiffs’ homes.” Continental requested that the court allow the jury to take an actual trip to the farms, and jurors themselves asked to do so during deliberations, but the plaintiff’s lawyers opposed the idea and the judge said no. Frustratingly for Continental, it was not allowed to inform the jury that it had favored a visit and its opponents had not. (Richard S. Cornfeld, “Case serves as good example of shifting legal landscape,” Feedstuffs, Aug. 9)
October 4 – “Judge who slept on job faces new allegations.” This one may belong in the disability- accommodation category, since family-law judge Gary P. Ryan of Orange County, Calif. Superior Court had “blamed his courtroom slumber on a breathing disorder that disrupted his sleep at night”. However, matters took a turn for the worse last month when the judge was accused of dozing off in court again despite his insistence that his medical problem had been taken care of, and also was arrested by Newport Beach police on suspicion of drunken driving. (Stuart Pfeifer, Orange County Register, Sept. 26)
October 1-3 – Pokémon-card class actions – For those who haven’t been paying attention to the worlds of either nine-year-olds or class action lawyers, here’s the situation. Pokémon (“pocket monsters”) are lovable characters developed in Japan that have become a craze among kids. Nintendo sells packs of trading cards that feature the characters, but some of the cards are much rarer than others. Kids who want to collect the whole set wheedle their parents for money so they can buy lots of packs in search of the rare ones, which are sometimes resold for sums well in excess of their original cost.
Enter the class-action lawyers, who’ve now filed numerous suits against Nintendo and other trading-card makers. “You pay to play … there is the element of chance, and you’ve got a prize,” said attorney Neil Moritt of Garden City, N.Y. “It’s gambling.” Moritt represents the parents of two Long Island nine-year-olds who, per the New York Post, “say they were forced to empty their piggy banks” to collect the cards (the use of the word “forced” here might seem Pickwickian, but maybe the boys’ mothers are just bringing them up to talk like good litigants.) On ABC’s Good Morning America, another plaintiff’s lawyer said he sued on behalf of his son after noticing that the lad’s collecting had reached the point where “it was no longer fun”. Interviewer Charles Gibson raises the CrackerJack analogy (aren’t these really like the prizes found in CrackerJack boxes?). And an editor with Parents magazine says it would be “great” if the law could force Nintendo to sell complete sets at a modest price. Hmmm — would she favor having the law force her to keep back issues of her magazine in print, for those who want to assemble full sets? (Kieran Crowley, “Lawsuit Slams Pokémon as bad bet for addicted kids”, New York Post; Good Morning America transcript, “Poké-Mania lawsuit”, Sept. 27) (Oct. 13 sequel)
October 1-3 – Don’t call us professionals! The Fair Labor Standards Act exempts many sorts of creative, professional or executive jobs from its overtime provisions. But suits demanding retroactive overtime, claiming jobs were misclassified (though their occupants may have made no objection at the time) have increasingly become part of the routine arsenal of employment litigation. That means disgruntled workers are put in the peculiar position of having to bad-mouth the level of creativity they’ve exercised in their positions, as with these two Atlanta TV news reporters who now say, for purposes of litigation at least, that their work on screen amounted to little more than assembly-line hackery (Ben Schmitt, “TV News — Factory Work or a Profession?”, Fulton County Daily Report, June 4)
October 1-3 – “Boardwalk bonanza”. Hard-hitting exposé by Tim O’Brien in New Jersey Law Journal of the tobacco-fee situation in the Garden State, where the lawyers representing the state in the Medicaid settlement are in for $350 million in fees. “Remarkably,” writes O’Brien, “five of [six] had little or no tobacco litigation or mass tort experience. The one who did was bounced off the case on a conflict for much of the time. Moreover, most of the substantive legal work, including court arguments, was done by a South Carolina lawyer who brought up her own team….Finally, none of the local lawyers had anything to do with the national settlement talks that ultimately awarded New Jersey $7.6 billion over 25 years.”
The consortium set up to handle the suits included five former presidents of ATLA-NJ, the state trial lawyers’ association, and was hatched in a “brainstorm sitting around the convention center having a couple of drinks”. At first it heralded the role of a nonprofit foundation ostensibly set up for charitable and public-interest purposes, “[b]ut the foundation’s role was later quietly eliminated, if it ever existed.” Meanwhile, nearly $100,000 in campaign contributions were flowing in a six-month period from ATLA-NJ’s PAC to Republican legislators, including $4,350 in checks written the day after the lawyers got the contract.
“Sometimes you’re just in the right place at the right time,” says one rival. “Now they’re sitting in Fat City.” Don’t miss this one — and ask your newspaper whether its reporting on tobacco fees has been as diligent. (Tim O’Brien, “A $350M Boardwalk Bonanza”, New Jersey Law Journal, Sept. 27)