Ralph Nader

November 10-12 – Election special: litigating our way into a constitutional crisis? It isn’t often that a New York Times editorial exactly captures our own reaction to public events, but we wouldn’t have changed a word in this morning’s. It expresses concern about the “Gore campaign’s rush to litigation” and the possibility that matters might escalate into “scorched-earth legal strategy” on both sides of the presidential contest: “it is worrying that Mr. Gore and a legal team led by Warren Christopher, the former secretary of state, would announce their support for a lawsuit while the mandatory recount is still going on and while seven days remain for the arrival of overseas absentee ballots. It is doubly worrying that some Gore associates are using the language of constitutional crisis and talking of efforts to block or cloud the vote of the Electoral College on Dec. 18 and of dragging out the legal battle into January….

“We take very seriously the fairness issues raised by the ballot confusion in Palm Beach County and understand the public frustration or even outrage attendant upon the possibility of having the popular will thwarted by procedural errors, especially when a presidential outcome hangs in the balance. The problem is that potential remedies, such as a new election in Palm Beach County, seem politically unsound and legally questionable. The sad reality is that ballot disputes and imperfections are a feature of every election. It will poison the political atmosphere if presidential elections, in particular, come to be seen as merely a starting point for litigation.” (”A Fateful Step Toward Court” (editorial), New York Times, Nov. 10) (reg). Also: “Senator Robert G. Torricelli, Democrat of New Jersey, warned against getting mired in the courts. ‘I want Al Gore to win the election,’ Mr. Torricelli told reporters, ‘but more than that, I want somebody to win this election. There is going to have to be a very compelling case for anybody to take this into a court of law. It’s a downward spiral. It may begin in Florida, but it can go to other states and ultimately the presidency of the United States should not be decided by a judge.’” (R.W. Apple Jr., “Gore Campaign Vows Court Fight Over Vote, With Florida’s Outcome Still Up in the Air”, New York Times, Nov. 10). (DURABLE LINK)

November 10-12 – Election special: Nader non grata. Many liberals are furious with Ralph Nader for apparently costing Al Gore the election, with the Times rounding up indignant quotes from union, feminist and environmentalist officials. “Senator Joseph R. Biden Jr. of Delaware, echoing the sentiments of several other Democrats on Capitol Hill, said: ‘Ralph Nader is not going to be welcome anywhere near the corridors. Nader cost us the election,’ … Several Democrats said today that they expected many longtime financial supporters of Mr. Nader to cut off their contributions to organizations with which he is affiliated” — though, frustratingly, the article says nothing about what kind of supporters these might be (trial lawyers? unions?) thus accommodating Nader’s longtime practice (see June 13, Andrew Tobias in Worth) of concealing his sources of financial support (James Dao, “Angry Democrats, Fearing Nader Cost Them Presidential Race, Threaten to Retaliate”, New York Times, Nov. 9 (reg)). At an election-night gathering at Bill and Hillary Clinton’s hotel room, according to Lloyd Grove of the Washington Post, publishing figure Harry Evans exclaimed “I want to kill Nader!”, to which Sen.-elect Hillary Clinton replied, “That’s not a bad idea!”, immediately followed by a collective cry of “That’s off the record!” — too late (Lloyd Grove, “The Reliable Source”, Washington Post, Nov. 9) “My only hope is that no matter who wins, he will name Ralph Nader the first U.S. ambassador to North Korea. That way Ralph can spend his days with another egomaniacal narcissist, Dear Leader Kim Jong Il, and get a real taste of what a country that actually follows Mr. Nader’s insane economic philosophy — high protectionism, economic autarky, anti-markets, anti-globalization, anti-multinationals — is like for the people who live there.” (Thomas L. Friedman, “Original Sin”, New York Times, Nov. 10) (DURABLE LINK)

November 10-12 – Obese soldiers class action. When kicking out servicepeople for gaining too much weight, the U.S. armed services have insisted that they return their enlistment bonuses. “Under a federal ruling handed down last week, they’ll be able to sue the Pentagon in a class-action lawsuit to recover damages.” (Justin Brown, “How far can military go in punishing obese soldiers?”, Christian Science Monitor, Nov. 9).

November 10-12 – Dubious death-penalty science. The Supreme Court in 1993 (Daubert v. Merrell Dow) instructed lower federal courts to curb the use of unreliable expert testimony in civil litigation, with highly beneficial results for the quality of justice. Oddly, the Court has failed to tighten the corresponding rules for capital criminal cases, although there is evidence that some expert testimony that sends prisoners to Death Row would flunk a Daubert test, notably testimony which purports to predict future dangerousness with a high degree of certainty. “The use of psychiatric testimony in capital cases has also been sharply criticized by Peter Huber, a fellow at the Manhattan Institute in New York and a former law clerk for Justice Sandra Day O’Connor whose influential book denouncing junk science is widely credited with sparking the legal movement to limit expert testimony.” (Henry Weinstein, “Death Penalty Debate — Can New Violence Be Predicted?” Los Angeles Times, Nov. 6). Also: some critics are questioning whether fingerprint identification, among the pillars of forensics for a century or more, is really 100 percent reliable as is commonly assumed (Simon Cole, “The Myth of Fingerprints”, Lingua Franca, Nov.).

November 10-12 – Mickey Kaus on constitutional activism. The Slate and Kausfiles.com columnist worries that Bush high court nominees would go too far in striking down Congressional legislation on federalism grounds, but expresses even more alarm at the implicit activist judicial philosophy of Vice President Gore, which recalls “my law school days, in the mid-1970s, when the rights-making machine of legalistic liberalism was still churning away. …When Gore babbles eagerly about how ‘the Constitution ought to be interpreted as a document that grows with … our country and our history’ — sounding like a guy who went to the first year of law school for a few months but didn’t stick around long enough to realize what a crock much of it was — I think back to the liberals-out-of-control paradigm of my youth.” Whole piece is worth a read (”Don’t Rush Me! (Part 8)”, Slate, Nov. 6) (Kausfiles.com).

November 10-12 – Did securities-law reform fail? Five years ago Congress overrode President Clinton’s veto and enacted legislation intended to deter unwarranted shareholder “strike suits” organized by professional class action lawyers. Since then the number of suits has gone up, however, and observers differ as to how much good the law may have done and whether lawyers are finding it easy to evade. (Tamara Loomis, “Securities Reform: What Went Wrong?”, New York Law Journal, Oct. 27; Peter Catapano, “Who Wants To Be a Fraud Litigant”, Wired News, Nov. 8).

November 9 – Lawyers descend on Florida. “Over the sunny horizon, a plague of lawyers is descending on Florida. They officially are ‘watching’ the presidential recount. But they are also scouring every comma and ‘whereas’ in the Florida code to see if any loophole can be found to invalidate Florida, or to block such an action.” “Soon after [Florida Secretary of State Katherine Harris] ordered the recount, lawyers for both candidates flocked to the state, led by two former secretaries of state — Warren Christopher for Gore and James A. Baker III for Bush.” Jesse Jackson said black leaders may sue, while a Bush campaign source told Insight that “[o]ur people down there are getting the clear impression that the Democrats are searching madly for anything they can litigate on.” (Nov. 8: “Recount continues in Florida”, AP/Northern Light; Rod Thomson, “The Florida Rules”, National Review Online; Jamie Dettmer, “Election Update: Charges of Cheating Abound”, Insight Magazine; Raju Chebium, “Election Day allegations could form basis for legal challenges, experts say”, CNN.com; Paul Singer, “Rev. Jackson hints legal challenge to Fla vote”, Virtual New York; “More Irregularities Alleged”, ABCNews.com.)

November 9 – More election results. Three Michigan Supreme Court justices assailed by trial lawyers and other critics “trounced their Democratic opponents by large margins” (see Nov. 7; David Shepardson, “GOP projected to win state Supreme Court”, Detroit News, Nov. 8). In Ohio, however, Justice Alice Robie Resnick easily held onto her seat despite outrage from organized business over her authorship of a decision invalidating liability limits in the state, and a challenger nearly succeeded in knocking off incumbent Justice Deborah Cook, who had voted to sustain the reforms (see Oct. 30; James Bradshaw, “High court unchanged despite negative TV ads”, Columbus Dispatch, Nov. 8). And in a House race in West Virginia, GOP insurgent Shelley Moore Capito pulled off an upset to defeat Jim Humphreys, a wealthy asbestos lawyer who had poured more than $6 million of his own money into his campaign. (see Oct. 23; Karin Fischer, “Capito scores upset”, Charleston Daily Mail, Nov. 8).

November 9 – Reshuffling blackjack decks not racketeering. A three-judge panel has ruled that Atlantic City, N.J. casinos did not violate the federal RICO (racketeering) law by adopting “countermeasures” against known and suspected practicers of card-counting at the blackjack tables. At the “heart of the lawsuit … was the players’ objection to the casinos’ practice of re-shuffling the decks ‘at will’ whenever a card-counter is spotted.” The plaintiffs included 60 casino patrons, most with card-counting skills, as well as companies that offer courses in the memory technique, which allows a customer to increase the chances of beating the house by deducing the distribution of cards remaining undealt. Federal judge Morton Greenberg ruled that the claims “are completely insubstantial and border on the frivolous” because the rules of the New Jersey Casino Control Commission specifically authorize casinos to reshuffle at will, because the players “can avoid any injury simply by walking away from the alleged wrongdoers, the casinos”, and because the loss of the chance to make money at a casino’s expense can hardly be characterized as “an injury to business or property”. (Shannon P. Duffy, “Federal Court Finds Players Have No RICO Claim Against Casinos, The Legal Intelligencer, Nov. 6).

November 8 – “Opposition to Indian mascots intensifies”. Legal pressure is intensifying on school systems, universities and professional sports clubs to drop mascots and team nicknames (”Warriors”, “Chieftains”, etc.) that refer to American Indians. In a case now on appeal, “[t]he U.S. Patent and Trademark Office ruled last year that [football's Washington] Redskins have no right to trademark the name because it is disparaging to American Indians.” Activists are filing complaints seeking the cutoff of federal education funds to schools that decline to drop old team names. “Kevin Gover, who heads the Interior Department’s Bureau of Indian Affairs, applauds such an effort. ‘Any school putting forward a stereotyped image of any race is in violation of civil rights laws, and I think should lose federal funding,’ he said. ‘If the Justice Department won’t do it, lots of lawyers like me will do it for them.’” (Don Babwin, AP/FindLaw, Nov. 6). St. Petersburg Times columnist Robyn Blumner takes a dim view of using copyright law to enforce a regime of political correctness in cases like that of the Washington football club (”Government has no business in Redskins opinion”, July 23).

November 8 – Loser-pays activism. The New Century Project, a fledgling policy group chaired by retiring Rep. John Kasich (R-Ohio), lists “Legal Reform” among its four central issues and in particular states: “We support a so-called “loser pays” reform which would allow judges to order fee shifting in tort and contract cases. Such efforts may also include imposing penalties on attorneys, law firms, or individuals bringing frivolous lawsuits.” Its other three main issues: school choice, elimination of the federal estate tax, and opposition to Internet taxation.

November 8 – From the evergreen file: cancer alley a myth? “Everyone knows that cancer rates are sky-high along the Mississippi River between Baton Rouge and New Orleans.” Trial lawyers and the “environmental justice” movement say the area’s poor and black residents fall victim to cancer at high rates because of the large concentration of chemical refineries along the river. “The only problem is that what ‘everyone knows’ just isn’t true.” According to an article in the Journal of the Louisiana Medical Society, the incidence of most types of cancer in the alley does not differ from national incidence, and the few exceptions, such as high rates of lung cancer in New Orleans, are plausibly attributable to smoking and other familiar risks. (Michael Gough, “Did You Hear? Good News from Cancer Alley”, Cato Daily, October 15, 1997) (via Junk Science). The contrary view, which dismisses the incidence comparisons as inept or corrupt, is widely found around the Web (stored Google search), including Barbara Koepple, “Cancer Alley, Louisiana”, The Nation, Nov. 8, 1999. Also: there’s now a whole parody page (dhmo.org) devoted to warning against that insidious substance, dihydrogen monoxide (you might drown in it).

November 7 – Litigation reform: what a Democratic Congress would mean. What would happen to the chances for curbing excessive litigation should the Democratic Party retake Congress in today’s election? To begin with, key committee posts (as at Judiciary and Commerce) would fall to longtime trial lawyer allies like Sen. Ernest Hollings (D-S.C.), Sen. Edward Kennedy (D-Mass.), Sen. Patrick Leahy (D-Vt.), and Rep. John Conyers (D-Mich.). And then there’s Rep. Patrick Kennedy (D-R.I.), who serves as spokesman for his party as chair of the Democratic Congressional Campaign Committee. On October 10 the younger Kennedy was making an appearance on CNBC “Hardball” when host Chris Matthews brought up the topic of excessive trial lawyer sway within the Democratic Party. Kennedy began his answer by questioning the patriotism of those who presume to criticize the American litigation system (graciously suggesting we should “go someplace else and live” if we don’t appreciate it). When Matthews volunteered that he himself was “a little skeptical of the motives” of trial lawyers, Kennedy suggested that such a view was really tantamount to opposing the system of trial by jury. Finally, after Matthews persisted, saying that in his view “there’s probably too much litigation in the country and too many big settlements”, Kennedy simply dismissed the whole subject out of hand, saying his host must have “been reading the Republican propaganda”. The entire sequence must be read to be fully disbelieved, so we’ve posted it on a separate page. Also: don’t forget our special page on trial lawyers and politics.

November 7 – Michigan high court races. More coverage of the closely watched state supreme court races in which three respected conservatives appointed by Republican Gov. John Engler have been targeted by the state Democratic Party and its trial lawyer and union allies; partisans of both camps have run injudicious ads, with the Detroit News calling the latest broadside from the Democratic side “truly vicious” (Detroit News, Oct. 31; Nov. 1; Nov. 6; Detroit Free Press, Sept. 25; Oct. 21; Oct. 24; Oct. 27; Oct. 28 Markman, Taylor, Young). Earlier coverage on this site: Aug. 25, May 9, May 15, 2000; Aug. 6, 1999.

November 7 – Family law roundup. Headline says it all regarding bitter split between ex-spouses over a farm in Somerset, England: “Divorce battle ends with £840,000 bill” (Ananova.com, Oct. 26). Conflicts over the disposition of frequent flier miles in divorces and will contests are on the rise, reports the New York Times. A Dallas woman says she and her ex-husband “had agreed to split the miles in their divorce settlement, but that he used the bulk of them before the divorce was finalized. She said she was shocked when she called American Airlines days after her divorce and was told that there were only 543 miles left in her husband’s account, down from more than 60,000.” Her hubby’s lawyer says she should have asked the judge for a restraining order if she didn’t want him to use up the miles (Jane Wolfe, “A New Thorn in Divorces: Who Gets the Miles?”, New York Times, Oct. 29) (reg). And controversy is simmering over allegedly clubby relations between family law judges and lawyers in Marin County, Calif.: was it easier to win your divorce or custody case if you’d attended one of the judge’s big parties, or hired a member of the insider lawyers’ group that called itself FLEAs, for Family Law Elite Attorneys? (Matt Isaacs, “Odor! Odor in the court!”, San Francisco Weekly, Oct. 18).

November 7 – Update: judge turns down “Millionaire” ADA suit. A federal judge ruled last week that the Americans with Disabilities Act does not prohibit ABC and the producers of the TV show “Who Wants To Be a Millionaire?” from using a touch-tone phone system to pre-screen entrants, despite the hurdle that poses to deaf contestants (see March 24) (”Judge: ‘Millionaire’ qualifying round not covered by ADA”, AP/Boston Globe, Oct. 30). Update Jun. 21-23, 2002: appeals court reinstates suit.

November 6 – Coercive capitalism? “Nader is most famous for his attacks on corporations and capitalism. . . .He does not believe that individuals choose their economic relationships with these companies. Instead, he argues that they involve some type of force or compulsion. In short, he equates the coercive power of government with the economic power of the private sector.

“If you think he’s right, try two things. For a whole year, don’t send your money to the IRS, and don’t send your money to McDonald’s. Don’t pay your taxes and don’t buy a Big Mac. See which organization — the government or McDonald’s — comes after you with guns, threatening to put you in jail, seize your property, or even take your life, if you don’t give them your money.” (David Parker, “An American Dictatorship: Ralph Nader’s Vision for America”, Capitalism Magazine, August). See also Jay Whitehead, “Ralph Nader: Analog Anachronism”, ZDNet, Sept. 1.

November 6 – Beehive of legal activity: Utah tobacco fees. Utah is one of the smaller states, but the Tobacco Fee Arbitration Panel has shown its usual generosity and awarded the attorneys who represented it in the state-Medicaid litigation a whopping $64.85 million. Even this sum is a great deal less than some of the lawyers feel entitled to recover for working on behalf of the state; last year one of the law firms involved, Giauque, Crockett, Bendinger & Peterson, got into a fight with state attorney general Jan Graham when it filed a lien to claim 25 percent of the state’s settlement, or about $250 million. The Giauque Crockett website says that the arbitration award “will be a dollar for dollar offset or credit against the obligation of the state of Utah to pay the Firm under the Firm’s contingent fee contract.” South Carolina’s Ness, Motley is also sharing in the Utah payout, as in many other states’. (Reuters/CNN, “Utah attorneys awarded $64.85 million in tobacco fees”, Oct. 25; Judy Fahys, “Tobacco Tussle, Round II, Graham sues law firms in dispute over settlement, Salt Lake Tribune, Nov. 25, 1999).

November 6 – Good Humor man busted for ringing bell. In Arlington, Va., it’s against the law for a commercial vendor to ring a bell to attract notice, resulting in a recent wave of law enforcement activity targeting the venerable Good Humor ice cream man. “That’s crazy,” one mom says. “How would the kids know he was there if he didn’t ring his bell?” (Patricia Davis, “In Arlington, Ringing Up the Tickets”, Washington Post, Oct. 30).

November 6 – Welcome visitors. Overlawyered.com has recently been cited on the Eight Kinds of Ice weblog (November 5 entry) and LinkLog; won the “MadPick” site award bestowed by humor columnist Madeleine Begun Kane; figured several times as a source for the Bonehead of the Day award; been among Jack Lyne’s weekly Editor’s Choice Web Picks (week of Oct. 2) at Site Selection Online Insider, which serves commercial real estate execs; been called a “must-visit Web site” by Jacquelyn Horkan, editor of the “InBox” at Florida Business Insight (August 4) (Associated Industries of Florida); and gotten a mention in the online Law Society Journal of the Law Society of New South Wales, Australia (Patrick McAlister, “Outside View”, Sept.).

November 3-5 – Rick & Hillary spar over Indian land claims. GOP senatorial candidate Rick Lazio has been running radio ads in upstate New York criticizing the Clinton Administration’s support for Indian land claims that have asserted title to wide swaths of the western part of the state, mobilizing thousands of property owners to outraged protest (see Oct. 5 and Oct. 27, 1999; Feb. 1, 2000) The ads say his Democratic opponent, Hillary Clinton, “refuses to stand up for the rights of upstate New Yorkers” on the land issue. A spokeswoman for Mrs. Clinton says the First Lady supports the litigation in general, which has been backed and assisted by her husband’s Justice Department, but does not approve of the naming of individual homeowners as defendants.

Meanwhile, “[t]he U.S. Interior Department has proposed a new American Indian land claim case that could affect property owners on more than 100,000 acres of prime suburban and rural land in western New York,” this time on behalf of the Senecas, including large areas in suburban Buffalo. Jim Mazzarella, of Republican Gov. George Pataki’s Washington office, “called the potential suit ‘outrageous’ and ‘another attack on the homeowners of western New York.’” (John Machacek, “Indian land claim may hit area”, Rochester Democrat & Chronicle, Nov. 1). Upstate Citizens for Equality, an organization critical of Cayuga and other claims, maintains information on its website about the status of Indian claims in New York and elsewhere. Update Nov. 2-4, 2001: Bush Justice Department reverses position and urges judges to dismiss individual homeowners from the suit.

November 3-5 – Just had to donate. This year, as in the past, plaintiff’s lawyers are pouring money into the campaigns of judicial candidates considered friendly to their interests, and in Mississippi, as in other states, they prefer to put forward the notion that their spending is purely reactive, meant to offset the donations that their dastardly opponents are making in judicial contests (and by their opponents they tend to mean pretty much every donor to such campaigns other than themselves, with the possible exception of labor unions). However, that still doesn’t explain why they feel obliged to give their favored judicial candidates enough money to outspend their opponents two to one. Thus Supreme Court candidate Percy Lynchard, heavily backed by plaintiffs’ lawyers, has raised $446,000 in his bid to unseat incumbent Justice Kay Cobb, while Cobb has raised $171,000; and Frank Vollor, whom they are backing for another seat on the court, raised $402,000 as compared with $217,000 for his opponent, incumbent Justice Jim Smith. Lynchard’s “frenzy” of fund-raising included $83,000 in contributions on a single day, Oct. 17, “mostly from plaintiff lawyers”, and $276,690 for October as a whole. (Beverly Pettigrew Kraft, “Judicial gifts hit record amounts”, Jackson Clarion-Ledger, Nov. 1).

November 3-5 – Gets no kick from football verdict. Last month (see Oct. 13) a jury awarded $2 million to Heather Sue Mercer, who sued Duke University for sex bias after being cut from her walk-on spot as a kicker with the football team. Among those not thrilled by the jury’s action, according to last Sunday’s Atlanta Journal-Constitution, is kicker Tonya Butler of Middle Georgia College, whose dream is to become the first female given a football scholarship to a four-year school. “‘That’s ridiculous,’ Butler remembers thinking. ‘Not just the money, but the whole case. I thought it would be thrown out of court. I’m sorry, but she just got beat out by the other kickers. That happens.’

“‘I’m afraid the case has really hurt my chances. Now everyone has to worry if I’ll sue, too, if things don’t work out. I hope it hasn’t closed all the doors for me.

“I don’t play football to make a statement. I play because I love kicking and I’m good at it. I shouldn’t be penalized because of what someone else did.” She has been calling colleges trying to assure them she wouldn’t sue if things didn’t work out, but their interest has waned since the verdict. In 1997 Willamette University in Oregon drew national attention when it briefly employed Liz Heaston as a kicker, but Willamette coach Mark Speckman “said he would not dare call on Heaston now. He, like other coaches, has two million reasons why, after the Duke case. ‘A coach in my position can’t take the risk,’ Speckman said. ‘This is just going to freeze any possibility out. It isn’t worth it.’” Current interpretations of Title IX, the feminist athletics statute, do not entitle women to join men’s football teams but do allow them to sue for damages if they are accepted and then treated unequally. Former Duke coach Fred Goldsmith, who befriended Mercer and then saw the relationship deteriorate and give rise to the lawsuit, said, “I was a nice guy, and I got stabbed in the back.” (Guy Curtright, “Blow to the cause”, Atlanta Journal-Constitution, Oct. 29).

November 3-5 – Alarming byline. “MIKE CRAIG is an attorney and writer in Chicago. He has written for Online Investor and sued nearly everyone for all sorts of misbehavior.” — byline on an article in Green Magazine (”Listen to the Money Talk”, Oct. 27).

November 2 – Radiologists: sue them enough and they’ll go away. Although more women are getting the word about the life-saving benefits of mammography (X-ray screening for breast cancer), “doctors who read the X-rays seem to be fleeing the field at an alarming rate. Caught between rising litigation over allegedly missed tumors and low reimbursement for their services, a growing number of radiologists say their field just isn’t worth the stress any more,” writes Judy Foreman in the Boston Globe. On the legal front, failure to diagnose breast cancer is “‘the number-one allegation against all doctors, in Massachusetts and nationally,’ said Martha Byington, a loss-prevention specialist at the Risk Management Foundation, which insures Harvard doctors and hospitals.” Radiologists have replaced gynecologists as the medical professionals that lawyers most often go after in that variety of case, especially since “mammograms can be extremely difficult to read. Indeed, with hindsight — that is, after a diagnosis of breast cancer — radiologists say they can often look back at old mammograms and pick up tell-tale signs of cancer that, on first reading, did not raise a red flag.” Not surprisingly, high-profile jury verdicts and settlements have proliferated.

As the specialty has developed a reputation for being legally difficult, young doctors have shunned it. Meanwhile, “[t]he retirement rate of radiologists doubled from 1995 to 1997, from 400 to 800 a year, while the number of new radiologists specializing in mammograms dropped by 80 percent, according to a study by the American College of Radiology. . . . For women, radiologist burnout translates into a months-long wait for routine screening at many centers — when the mammograms are available at all.” With the availability of free and even paid mammograms plunging, more women are likely to go without exams, with deadly consequences. (Judy Foreman, “Stressed Out: Burned by Lawsuits and Low Pay, Radiologists Are Quitting, Making Women Wait Longer to Find Out If They Have Breast Cancer”, Boston Globe, Oct. 24).

November 2 – Pot tax bond. Kentucky investigators lacked enough evidence of criminality to convict or even arrest 23-year-old Charles Thomas Jr., who lived in a trailer in Breathitt County near where 517 marijuana plants were found growing on land he did not own. “Nevertheless, Thomas owes the state a little more than $1 million under a 1994 law that taxes [presumed] marijuana dealers $1,000 a plant and penalizes those who do not pay the tax before they are caught.” Moreover, the law “requires suspected dealers to post a bond equal to the amount owed before they can file a protest.” Since Thomas doesn’t have that kind of money, his lawyer says his right to protest the assessment in court might as well be a dead letter. (”$1 Million Pot Tax Bill Stirs Fight”, APBNews/FindLaw, Oct. 27).

November 2 – No K Street in Forbidden City. “During the 300 years of the Qing Dynasty, lobbying was an offense punishable by death. The emperor was considered the Son of Heaven, and for a mere mortal to have the audacity to suggest policy to him was unforgivable.” (Sam Loewenberg, “Navigating the Maze” (lobbying in present-day China), Legal Times, Sept. 19).

November 1 – Don’t meet with her alone. “Michael Land wants other male sole practitioners to learn from his sexual harassment disaster. Never meet a prospective female client alone, the Atlantic County, N.J., lawyer advises. Always have a secretary or paralegal present. . . . In 1996, a potential client complained to police that Land fondled her while they were alone. Police officers arrested him and handcuffed him to a pipe while they booked him.” A judge soon threw out the woman’s criminal complaint, and evidence came to light that she was a frequent filer of suits deemed frivolous, but customers whispered and Land’s business began to dry up. Four years later, in a most unusual turn of the tables, a jury not only denied her claim but ordered her to pay him $225,000 on his counterclaim of malicious prosecution. Vindication, yes, but at a price: “I have not seen a female client unescorted after-hours since this incident and probably never will again,” he told a local paper. (Henry Gottlieb, “New Jersey Jury Docks Client $225K for Saying Lawyer Groped Her”, New Jersey Law Journal, Sept. 6).

November 1 – Contingency fee reform. State ethics codes do not give inexperienced legal consumers enough protection from excessive lawyers’ fees, argues the University of Illinois’s Richard Painter, especially in the realm of contingency fees, where it is “difficult to discern much competition in a market that usually assigns the same risk premium (33%) to a plaintiff’s case, no matter how large the case is and no matter how likely the client is to win.” In this paper for the Civil Justice Memo series of the Manhattan Institute (with which this site’s editor is associated), Painter “reviews a number of the proposals that have been made so far and discusses the comparative strengths of a new proposal made by Jim Wootton, President of the U.S. Chamber of Commerce Institute for Legal Reform: a ‘New American Rule’ that would require a lawyer to set for each client at the beginning of a representation a limit of any amount (phrased in dollars per hour of legal services) on how high the contingent fee can go and then disclose to the client general information about the fees that the lawyer has charged to other clients.” (Richard W. Painter, “The New American Rule: A First Amendment to the Client’s Bill of Rights”, Manhattan Institute Civil Justice Report #1, March 2000). Columnist David A. Giacalone at PrairieLaw also endorses disclosure-based contingency-fee reforms (”Advocate This!: Pricey Contingency Fees“), as does presidential candidate George W. Bush (campaign website, “Civil Justice Reform” — see “Client’s Bill of Rights” item).

November 1 – “School Suspends Girl for Casting Spell”. In Broken Arrow, Oklahoma, the Union Intermediate School District is said to have suspended student Brandi Blackbear on suspicion of casting a spell. According to the American Civil Liberties Union, assistant principal Charlie Bushyhead called Blackbear to his office after a teacher fell unexplainedly ill, questioned her about her passing interest in Wicca, and summarily suspended her. “I, for one, would like to see the so-called evidence this school has that a 15-year-old girl made a grown man sick by casting a magic spell,” said the ACLU’s Joann Bell. However, the school attorney, Doug Mann, called the account into question, saying privacy laws protecting juvenile records prevented him and the district from commenting on the case: “It’s totally unfair that we are gagged by federal and state law and they can say anything they want,” he said. “If the parents will sign a release for what’s in the girl’s files, we will talk about the true facts.” (Ben Fenwick, Reuters/Excite, Oct. 30).

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