Richard Epstein

December 15 – “Two men shot in suspected drug deal win $1.7 million”. Catching up on a story that slipped by us last month: A Miami jury has returned a verdict against Ramada Inn for negligent failure to provide security after the shootings of Eddie Talley and Jerry Woods in the parking lot of a Hialeah, Fla. Ramada Inn in 1995. Damages have not been determined pending an appeal, but the two are seeking a total of $1.7 million for their injuries.

According to Miami Herald and Associated Press accounts of the case, Talley, whose rap sheet includes a Georgia felony conviction for possession of cocaine and marijuana, and Woods were staying at the Ramada while visiting relatives over the holidays. Around 7:20 p.m. on December 18, 1995, they were sitting in the inn’s parking lot in their borrowed Jeep Cherokee accompanied by three-time convicted felon Gerald Lloyd, 42, when after several minutes they were approached by two gunmen who demanded that they hand over their money and almost immediately began firing, wounding Woods and Talley. When police arrived they found that not only the attackers but also their victims had fled the scene. They found no drugs in the Cherokee, but Lloyd’s van, parked nearby, contained a duffel bag containing $38,000 in small bills and an electronic scale. (Lloyd later said the scale was for weighing jewelry and the cash for buying real estate.) They also found “small packets of crack and powdered cocaine in Talley’s jacket inside his hotel room at the Ramada Inn” but did not charge him.

Police Detective Bassam Fadel of the Hialeah force said the department received no cooperation from the three men in the investigation, and the shooters were never found. However, Woods and Talley’s aversion to entanglement in legal process did not extend to a reluctance to engage in civil litigation, and they proceeded to sue the hotel chain charging negligent security; it employed a security guard, but only between the hours of 9 p.m. and 5 a.m. Miami-Dade Circuit Judge Celeste Muir proceeded to exclude from the civil trial, as prejudicial, much of the evidence from the police investigation about the suspected drug deal. Raul E. Garcia Jr., the attorney who represented Woods and Talley in the civil suit, defended the verdict: “I don’t think there was enough evidence to arrive at the conclusion that this was a drug deal gone bad,” an interestingly precise, we might even say lawyerly, wording for him to adopt. (Jay Weaver, “Two men shot in suspected drug deal win $1.7 million”, Miami Herald, Nov. 25; “Jury Rules Against Ramada Inn”, AP/Milwaukee Journal Sentinel, Nov. 25). (Update June 6, 2001: appeals court overturns verdict)

December 15 – From the quote file. “In recent years, the Supreme Court has become the chief human resources director for the nation’s workplaces.” (“Can’t We All Just Work Together?”, the editors, Legal Times (Washington, D.C.), Nov. 8 — not online)

December 15 – Philadelphia Inquirer Tech.life: “Web Winners”. We’re pleased that our topical page on tobacco litigation has been named one of the Philadelphia Inquirer‘s weekly “Web Winners”, part of the paper’s Tech.life section. The feature is also syndicated to other newspapers and appeared in the Atlanta Journal and Constitution. (Nov. 18)

December 14 – Victory in Florida. Circuit Judge Amy Dean yesterday dismissed Miami-Dade County’s lawsuit against the gun industry seeking to recoup the cost of shootings. The ruling was the third tossing out a city gun suit; last week a Connecticut judge dismissed Bridgeport’s claim, and in October an Ohio judge dismissed Cincinnati’s. (Jay Weaver and Don Finefrock, “Miami-Dade gun lawsuit thrown out”, Miami Herald, Dec. 14; Mark Long, “Judge KOs Miami Gun Maker Lawsuit”, AP/Washington Post, Dec. 13, links now dead).

Despite the gun industry’s strong initial showing in the suits, it still faces a potentially ruinous cost of legal defense. Judges in Chicago and Atlanta have signaled a willingness to allow municipal claims to proceed to the stage of pretrial “discovery”, assuring a manyfold jump in the quantum of expense even if the gun makers eventually prevail in full.

A little-noted news report this fall in the Wall Street Journal sheds light on the thinking of some of the lawyers behind the suits. According to the report, one faction of outside lawyers for some of the cities, “especially Los Angeles and San Francisco”, have “argued against an early settlement”. One reason is that they hope to use the litigation, with its compulsory subpoena power afforded by the discovery process, to get at gun makers’ confidential files, correspondence and business documents; coincidentally or not, records obtained that way could prove invaluable to them in further for-profit litigation against the manufacturers even should the cities eventually settle or abandon their claims. And more: “Prolonged litigation and larger legal costs also would increase the financial pressure on the industry to accept new curbs.” In other words, these lawyers are suggesting that the cost of litigation be deliberately employed to bleed gunmakers as a means of gaining leverage over them. (Paul M. Barrett, “Gun Makers, Municipal Representives Ready to Meet on Settlement of Lawsuits”, Wall Street Journal, Sept. 24 (requires online subscription)). Because of this country’s lack of a loser-pays rule, gun manufacturers, like other defendants in litigation, have little hope of holding their persecutors answerable for the use of such tactics.

December 14 – California’s worst? The reform-oriented Civil Justice Association of California has nominated its picks for the most outrageous lawsuits of the decade in the Golden State. A sampling:

* A man sued the city of San Diego for emotional distress occasioned by his extra wait to use the men’s room at an Elton John concert after women began cutting in and using it. He also sued the beer concession for contributing to his repeated use of the facilities. The judge tagged him and his lawyer with sanctions for meritless litigation (sometimes it seems it takes a case this bad before judges’ll do that).

* An Oakland bank robber sued bank, city and police after a tear-gas device hidden in the loot went off and injured him during his getaway.

* The Santa Clara County YMCA was sued for failing to provide a lifeguard at a Jacuzzi that was 3 1/2 feet deep and less than 8 feet per side square.

* Disneyland was sued for emotional distress after a patron’s kids saw the strolling cartoon figures out of character and realized they were just regular people (Civil Justice Association of Calif. release, Dec. 8 — full list)

December 14 – Relax, you’re being taken care of. Is it okay for a lawyer pressing an injury case to set up his client in a free apartment, thus boosting the likelihood that he’ll stay the course to an eventual settlement payday? How ’bout if he pays the client’s electric bill, cable TV bill, gas bill and phone bill too? In Philadelphia, attorney Marvin Barish has been performing those generous services for client John Shade but recently became the target of an ethical challenge from the opponent in the case, who said the relationship violates legal ethics. Mr. Barish describes the assistance as “humanitarian” and says it breaches no rules because he does not have a legal right to recoup the expenses later from Mr. Shade. (Shannon P. Duffy, “Motion to Disqualify Counsel: Isn’t Paying Plaintiff’s Rent, Utilities Against the Rules?”, Legal Intelligencer, Oct. 27 — full story). (Update: court refuses to disqualify Barish from case; see March 13).

December 13 – New improvement to the Overlawyered.com site: we become a desktop. Until now the column running down the left side of this site’s front page has mostly consisted of a blank grey expanse. Starting today it’ll be much less blank since we’re using it to house a series of link clusters — a “portal” or “desktop”, as we think the jargon has it. We’ve picked the links ourselves (well, okay, they’re based on our editor’s bookmarks, but is there something so wrong with that?) and we hope they’ll appeal to readers who share our tastes in law, government and public policy, news and commentary, business, book stuff, science, skepticism, humor, and that sort of thing. At a minimum they provide a jumping-off point for keeping abreast of breaking news, checking out the state of the American legal system, or simply investigating links we’ve found stimulating (we don’t always agree with the sites’ contents, as should prove obvious).

Check out the new additions to the front page’s left column and you’ll see they’re reasonably self-explanatory. The earlier groupings are relatively practical in nature and often relate to the upkeep of this site (search, breaking news, legal news and research, policy and business stuff) while the later ones progress toward opinion writing (including many of our favorite online columnists), and so to matter for leisure, reflection and diversion. Feel free within reason to nominate links we should add, bearing in mind that when it comes to selection choices our whim is as iron, and that (even with teeny-tiny type sizes) space in the list is at a premium.

December 13 – Tobacco bankruptcies, and what comes after. “Tobacco companies may soon deem it rational — perhaps imperative — to seek bankruptcy protection from tort creditors….

“[A tobacco company would, first, want to file in the state in which it was incorporated, such as Delaware. Second, it] would probably want to file the case as a ‘prepackaged plan,’ which would be negotiated with the debtor’s major constituents, such as banks, shareholders and, perhaps, tort claimants before filing. Third — and most important — it would want to continue to manufacture cigarettes after reorganization. It is therefore possible that, under a confirmed plan, tort creditors [such as state governments, trial lawyers, and other key players in the demonization of the companies -- ed.] would own interests in a business that, depending on your theory of tobacco company liability, continued to engage in the tortious conduct that created liability in the first place.” (Jonathan Lipson, “Bankruptcy: Tobacco companies”, National Law Journal, Dec. 6 — full story). The crusade against tobacco-selling, in other words, would end with the crusaders getting to own a share of that richly profitable enterprise. For further details, see the close of Orwell’s “Animal Farm”.

December 13 – Pie menace averted. Members of the Community Advent Christian Church in Norwalk, Ct. wanted to bake pies this Thanksgiving and donate them to the city’s emergency shelter, but were told that under a state regulation home-baked pies cannot be donated to the shelter and that any pies that get donated anyway are thrown out, reports the Norwalk Hour. State health officials had informed shelter administrators that only commercially baked pies or pies baked in the shelter’s own kitchen are acceptable. Parishioner Rae Russo termed “ridiculous” the suggestion that she make use of the shelter’s kitchen to bake a pie for donation, asking, “Do you think their oven is cleaner than my own?” (Yvonne Moran, “Home-baked pies shelved”, Norwalk (Ct.) Hour, Dec. 10 — not online)

December 11-12 – Victory in Connecticut. In Waterbury, Ct., Superior Court Judge Robert F. McWeeny has dismissed the city of Bridgeport’s lawsuit against gun makers, which had sought to blame the city’s notoriously high crime rate on those manufacturers as opposed to its own failures of governance. “When conceiving the complaint in this case,” wrote Judge McWeeny, “the plaintiffs must have envisioned [the tobacco settlements] as the dawning of a new age of litigation during which the gun industry, liquor industry and purveyors of ‘junk’ food would follow the tobacco industry in reimbursing government expenditures and submitting to judicial regulation.” But the plaintiffs, he ruled, “have no statutory or common law basis” for a recoupment claim and “lack any statutory authorization to initiate such claims”. The ruling follows a similar rebuke in October to Cincinnati’s attempt to mulct gun makers for the costs of shootings, which Hamilton County Common Pleas Judge Robert Ruehlman likewise dismissed as having no legal basis.

Bridgeport mayor Joseph Ganim, who masterminded the suit and is considered ambitious for statewide office, vowed to appeal. “We have a right, and the people have a right, to have this case heard by a jury,” he spluttered. Okay, Mr. Mayor, we’ll put it in words of one syllable: there’s no such right if you don’t have a law to sue on. And you don’t have one here. So you lose. Now go home. (John Springer, “Judge Dismisses Suit Against Gun Industry”, Hartford Courant, Dec. 11; “Conn. Judge Throws Out Gun Lawsuit”, AP/Washington Post, Dec. 10, link now dead)

December 11-12 – Guest Choice Network Site of the Day. Overlawyered.com was picked as Friday’s Site of the Day by the Guest Choice Network, an informative and often witty website that sticks up for the rights of the hospitality business and its customers against the rampant nannyism that if left unchecked would in time compel every restaurant, hotel and nightspot to be drink-free, smoke-free, red meat-free, wagering-free, sweets- and snacks-free, peanut- and other allergen-free, swordfish-free, flirtation-free, caffeine-free, perfume-free, and in the last analysis freedom-free. Highlights include the “Attack of the Nanny” game (an animation waggles her finger as she comes after you), an explanation of why Ralph Nader’s proposed American Museum of Tort Law would more appropriately be a house of horrors, and a retort against the Food Prudes written by the CEO of — yum! — Ruth’s Chris Steak House.

December 11-12 – Weekend reading: columnist-fest. Bunch of good columns to recommend:

* “Last night, my daughter refused to put on her pajamas until I had checked to make sure there was no WTO under the bed,” writes the Chicago Tribune‘s Steve Chapman. We hear the World Trade Organization “wants to dismantle democracy, starve working people, pave over rain forests, destroy the family farm and clog your bathtub drain,” but a closer look just illustrates once again the reasons why Pat Buchanan and Ralph Nader really deserve each other (“WTO gonna get you mama”, Dec. 2)

* New John Leo column on zero-tolerance policies is especially timely given the latest report: 12-year-old Kyle Fredrikson of Inverness, Fla. stomped his foot in a puddle at school, splashing classmates and a school employee. A nearby deputy arrested and handcuffed the youth, bundled him into a patrol car and whisked him to jail where he spent two hours. (“Zero Sense”, New York Daily News, Dec. 4; “Schoolboy’s puddle stomp gets him cuffed, arrested”, Tampa Tribune, Dec. 9, link now dead)

* Chicago Tribune‘s John McCarron on how the legal jihad against managed care is likely, after destabilizing the current employment-based health insurance system, to lead to the sorts of coverage disruptions and renewed cost inflation that will end with Washington stepping in to impose something on the order of Canadian-style “single payer” care — though there’s little evidence most Americans actually want that outcome (“Paralysis prognosis”, Oct. 11)

December 10 – Not the advertised side? The intersection of law and politics is a dodgy business, isn’t it? On Wednesday we described a recent race for state senate in Louisiana between two attorneys both of whom (we said, relying on the National Law Journal) practice mostly on the defense side in litigation. Now a reader from Baton Rouge writes in to say we were led astray in characterizing one of them that way. For more details, see the correction/addendum we’ve added to our December 8 report.

December 10 – “Case’s outcome may spur many more lawsuits”. A “big” trial is pending in Fayette, Miss. over the diet compound fen-phen. If it ends in as large a verdict as the lawyers hope, it just might lead to the unraveling of a laboriously crafted $4.8 billion settlement between claimants and drugmaker American Home Products. This AP dispatch quotes the editor of this website, who cites Mississippi’s reputation these days as a state where many unpleasant surprises can await out-of-state defendants (Paul Payne, “Case’s outcome may spur many more lawsuits”, AP/Biloxi, Miss. Sun-Herald, Dec. 9 — full story).

December 10 – Sixth most powerful. Only sixth? For the second year in a row Fortune pronounces the Association of Trial Lawyers of America the sixth most powerful interest group in Washington, D.C. That’s ahead of the Chamber of Commerce or National Association of Manufacturers, ahead of the doctors or teachers or realtors or farmers or public employees or auto workers or Hollywood studios. (“The Power 25″, Fortune, Dec. 6). But as Robert Samuelson points out in an excellent column in the current Newsweek, press coverage systematically underrates the influence in Washington of ideological lobbies such as Public Citizen and the National Organization for Women, which often work closely with organized lawyers to press for wider rights to sue. As if to confirm Samuelson’s point, Fortune omits such groups as Public Citizen, NOW, the ACLU, the NAACP and People for the American Way from its list of the capital’s supposed top 100 influence-wielders. (Robert Samuelson, “The Stealth Power Brokers”, Newsweek, Dec. 13, link now dead).

December 10 – Concern for health. On Wednesday the state of Texas executed convicted axe murderer David Martin Long, whom doctors had pronounced to be in serious condition after he ingested a drug overdose two days earlier in an apparent suicide attempt. “Because Long’s doctor deemed such a move ‘risky,’ state officials used an airplane staffed by medical personnel to ensure that he arrived in good health after the 25-minute trip” to the death chamber in Huntsville, reports the New York Times. (Jim Yardley, “Texas Inmate Is Executed Despite Overdose”, New York Times, Dec. 9 (free, but registration required))

December 10 – Driving up housing costs. California has some of the most expensive housing in the United States, and one reason, a legislative panel was told this fall, is the state’s intensely litigious climate with regard to construction-defect suits. Erection of condominiums, townhouses and other high-density residential units plunged in the mid-1980s after a wave of lawsuits led most insurers to stop accepting business from builders of multi-family housing. “We did one condo project and faced six years of lawsuits. We would never do another,” said a former official of a leading nonprofit developer of affordable housing. One lawyer who represents California homebuilders “said that his firm alone had defended 1,500 defect cases since 1989.” (Catherine Bridge, “A Building Controversy”, The Recorder/Cal Law, Oct. 5). In August the state Supreme Court helped matters when it overturned an appeals court decision and ruled by a 5-2 margin that plaintiffs in construction contract disputes are not entitled to damages for emotional distress. (Erlich v. Menezes (FindLaw; see Aug. 23 entry); Civil Justice Association of California release, Aug. 23; Coalition for Quality, Affordable Housing (seeks alternatives to litigation); Miller Law Firm (plaintiffs’ side)).

December 9 – Gun lawsuits: HUD, White House pile on. Not to be rude, but which is more likely to lead to a surge in crime in your neighborhood: the opening of a gun shop, or the opening of a big new low-income housing project subsidized by the federal Department of Housing and Urban Development (Andrew Cuomo, Secretary)? Yet Cabinet member Cuomo has made it a special project of his to enlist the federal government’s legal might behind the theory that gun sellers are the cause of crime, and now the White House has announced that it’s helping prepare a class-action lawsuit against gun makers to be filed by independent local authorities that run subsidized housing projects. “The real question is: Why isn’t the proper role of HUD and local authorities as defendants in lawsuits? They shouldn’t be able to dump their failings on others,” notes University of Chicago law professor Richard Epstein.

“We have safety caps on a bottle of aspirin; it makes no sense not to have safety devices on guns,” said Cuomo, in a line one may suspect his staff has been polishing for the occasion. The obvious responses are that 1) there’s a federal law on the aspirin bottles and no federal law on the other, and if Cuomo doesn’t like it he should go see Congress; 2) the reason there’s cumbersome packaging on aspirin bottles is that those who take aspirin never need to reach it in an emergency where every second counts; where a drug is needed in emergencies, as with asthma inhalers or epinephrine injectors, the childproofing is dispensed with; 3) the Bill of Rights doesn’t include an Amendment about pills or their bottles, meant to prevent a powerful central authority from gathering to itself too complete a monopoly of control over the means of medication; and 4) the childproofing law for pill bottles itself isn’t such a hot idea, because it leads many elderly persons with arthritic hands to transfer their pills to unmarked containers, where they figure in more mix-ups later.

Steve Sanetti, vice president and general counsel of Sturm, Ruger & Co., called the suit “crazy” and an “inversion of responsibility,” noting that the federal government already is in charge of regulating gun sales. Glock general counsel Paul Januzzo termed it “ridiculous”: “I don’t believe that anybody could possibly have a good faith legal basis to file that,” he said. “They call it pressure. I call it blackmail.” Although several gunmakers have filed for bankruptcy protection since the latest round of litigation began, President Clinton denied that the suit was intended to drive them bankrupt — never mind whether that’s the predictable and foreseeable result of his actions. (DURABLE LINK)

Sources: “U.S. preparing to sue gun makers on behalf of public housing residents”, Dallas Morning News (New York Times Service), Dec. 8; Anne Gearan, “White House Preparing Gun Lawsuit”, AP/Washington Post, Dec. 8, link now dead; Christopher Noble, “Gun makers say planned U.S. lawsuit makes no sense”, Reuters/Deseret News, Dec. 8; Mike Dorning, “U.S., Public Housing Agencies Discuss Gun Industry Suit”, Chicago Tribune, Dec. 8; Randall Mikkelsen, “Clinton says not seeking to bankrupt gun makers”, Reuters/Excite, Dec. 8, link now dead; Richard A. Epstein, “Lawsuits Aimed at Guns Probably Won’t Hit Crime”, Wall Street Journal, Dec. 9 (online subscribers only).

December 9 – Czar of Annapolis, and buddy of Fidel. American Spectator profile by Max Schulz of zillionaire asbestos lawyer, political kingmaker, and would-be slayer of lead-paint manufacturers Peter Angelos (see also our October 19 commentary). The article says Angelos’s treatment of the Maryland legislature as his own little fiefdom, which he uses to obtain a steady flow of bills that expand liability in cases he’s suing on, has grown so heavy-handed that even pliant Annapolis lawmakers are murmuring about revolt. Angelos’s stewardship of the Baltimore Orioles has been far from a success (though he’s been adept at milking hometown affection for the team for political advantage) and reached a low point in the recent spring episode in which, after pulling strings at the U.S. State Department, he was allowed to bring the Orioles down to Havana for an exhibition game against the Cuban national team — a major propaganda coup for the repulsive Fidel Castro. The long trail of victims Castro has left strewn behind him over the decades was apparently not of sufficient concern to Angelos to deter him from sitting alongside the dictator, the two chatting amiably in their box seats (Max Schulz, “Baltimore’s Little Caesar”, American Spectator, December 1999, link now dead).

December 9 – “Attorney blames airline for man’s drunken in-flight rage”. “The attorney for a drunken Tennessee man charged with assaulting and swearing at members of a flight crew yesterday blamed the airline for the incident that caused pilots to divert the course of the Dallas- to- London- bound plane and land at Logan International Airport.” Attorney Michael Cerulli of Swampscott, Mass. said that American Airlines’ alcohol policy was to blame for the behavior of his client, Hussam Jaber, 33, who became truculent and had to be calmed down by a co-pilot. Prosecutors, however, said that Mr. Jaber had brought his own bottle of gin onto the plane. (Franci Richardson, “Attorney blames airline for man’s drunken in-flight rage”, Boston Herald, Nov. 27 — full story).

December 9 – 125,000 pages served on Overlawyered.com. If you’d like the counter to spin even faster, why not mention this humble site in your e-newsletter, ask your favorite webmaster to include it on his or her links list, or propose us to directories like Yahoo, DMOZ, Excite and LookSmart in categories where we’re not currently listed and would logically fit?…Thanks for your support!

December 9 – Welcome WTIC News Talk visitors (“Ray and Robin’s picks“). See November 18 item.

December 8 – “‘Lawyer’ Label Hurts at Polls”. In off-year elections held through the South this fall, the National Law Journal reports, many candidates scored with voters by pointing out that their opponents were plaintiff’s lawyers themselves or were backed by that group. All but one of ten Louisiana legislative candidates who were labeled as trial lawyers lost, and losses by two attorney incumbents contributed to the GOP takeover of the Virginia general assembly. One exception to the trend: attorney Bobby Bright was elected mayor of Montgomery, Ala., ousting controversial longtime incumbent Emory Folmar. An Alabama pollster agrees, however, that “‘trial lawyer’ has become a pejorative term.”

Charles R. “Chick” Moore, a former president of the Louisiana Trial Lawyers Association, lost in a challenge to an incumbent who breezed home with 62 percent of the vote. Moore complained that it was unfair for the opposition to call voter attention repeatedly to his status as a trial lawyer, since he was trying to campaign on the issue of education. However, “[o]f Mr. Moore’s first $138,411 in contributions, more than four-fifths came from lawyers, and more than $40,000 donated during the last two weeks of the campaign came from past and present Trial Lawyers Association officers” — rather a lot of interest for his colleagues to take in advancing an education platform. In perhaps the most remarkable episode, two lawyers who practice on the defense (as opposed to plaintiff’s) side [see note below] ran as opposing candidates in a New Orleans race for state senate; both proceeded to accuse each other of being soft on you-know-who. “The Trial Lawyers Are Desperate to Beat John Hainkel,” declared one side, while a brochure distributed by the other was titled, “How LOW Will The Trial Lawyers…Go To Defeat Jimmy DeSonier?” (“Sen. Hainkel won handily.”) (Mark Ballard, National Law Journal, Nov. 18 — full story).

Correction/addendum: the above characterization of candidate Jimmy DeSonnier as practicing on the defense side followed the National Law Journal‘s description of him as “a GOP litigator who often represents slip-and-fall defendants”. Writes Dan Juneau from Baton Rouge, La.: “Hainkel, the winner in the election, is a defense attorney, but DeSonnier is a plantiff attorney who until right before the election served on the board of directors of the Louisiana Trial Lawyers Association. Hainkel will now become president of the Louisiana State Senate, much to the chagrin of the trial lawyers who poured huge contributions into the campaign against him. Hainkel won with 75% of the vote.”

December 8 – Update: toilet of terror. As we reported in this space December 1, Canadian tourist Edward Skwarek and his wife Sherrie have sued the Starbucks coffee chain for $1.5 million, alleging that an intimate part of Mr. Skwarek’s anatomy was caught and mangled while he was seated on the toilet seat of a Starbucks outlet in the Chelsea neighborhood of Manhattan. The Smoking Gun has now posted a copy of the 4-page complaint, signed by attorney Stuart A. Schlesinger of the law firm of Julien & Schlesinger P.C., along with a photo of the offending commode (“Is this the most dangerous toilet in America?”).

December 8 – Annals of zero tolerance: scissors, toy-gun cases. In Newport News, Virginia, senior Shiana Floyd has been suspended for 11 days under a zero-tolerance weapons policy after a teacher observed a pair of scissors that had fallen out of her purse. Ms. Floyd, interested in fashion, says she often uses the scissors to cut illustrations of clothes out of magazines. And in Columbus, Ohio, a federal judge has upheld Westland High School’s expulsion of 17-year-old Stephen Koser after a deputy patrolling the school parking lot noticed a plastic toy gun, which the deputy mistook for a real one, underneath the seat of the car belonging to Koser’s mother, which he had driven to school. Young Koser, who’d had disciplinary problems in the past, got himself in more trouble by losing his temper and spouting profanities when confronted about the supposed weapon; his family said the toy gun had been left in the car by a neighbor child and that Koser was unaware of it (Stephanie Barrett, “Suspended for carrying scissors”, Hampton Roads, Va. Daily Press, Dec. 7, link now dead; Robert Ruth, “Judge Upholds Student’s Expulsion for Toy Handgun”, Columbus Dispatch, Dec. 3)

December 8 – Welcome Bedtime Stories visitors. Offbeat news tidbits, Internet humor, and the occasional bit of inspiration or uplift: all are found on this free twice-a-day email service, edited by Milan Vydareny, consisting of “anecdotes, humor, and commentary on the human condition”.

December 7 – The fateful t-shirt. Stewart Gregory of Cincinnati, Ohio, is suing NBC, the “Tonight Show” and host Jay Leno, saying he was “battered” and “forcefully struck” in the face on Sept. 11, 1998 when the warm-up comic who preceded Leno on the show blasted a freebie t-shirt into the audience with an air gun. Gregory, who is representing himself without a lawyer, seeks damages in excess of $25,000 for his “pain and suffering, disability, lost wages, emotional distress, humiliation and embarrassment”, as well as punitive damages. Court papers say audience members are frequently pelted with freebie paraphernalia as part of the warm-up. (Ann W. O’Neill, “Fan Slaps Leno With Suit After In-Your-Face T-Shirt Giveaway”, Los Angeles Times, Dec. 5, link now dead; Amy Reiter, “Does Carrey Need to Exercise?” (second item), Salon, Dec. 7) (& see update, Dec. 22)

December 7 – Rolling the dice (cont’d). Latest lawsuit by an Internet gambler seeking to blame his losses on the credit card companies that advanced him the money: Frank Marino’s action in San Rafael, Calif., against American Express and Discover. We last reported on this genre of suits in August. An “American Express spokeswoman said the company has not been served with a complaint yet and added it prohibits merchants from accepting the American Express card via the Internet for gambling purposes.” (Yahoo/Reuters, “American Express And Discover Sued for Online Loans”, Dec. 7, link now dead)

December 7 – “Power Tools: America’s Children at Risk”. We thought this parody, with its motto “It Feels Good to Give Up a Little Freedom for a Lot of Safety” and its invention of the litigious pressure group M.I.L.T. (Moms Insisting on Licensed Tools), was a pretty funny take-off on anti-gun hysteria. A scary aspect, however, was how often visitors have taken it for real. (part of Robert Frenchu site).

December 7 – Welcome Association of Trial Lawyers of America. We certainly appreciate the traffic you’ve sent us via a recent link in an online mailing from ATLA-NET, even if we fear that our efforts do not always succeed in pleasing your membership (“Your site is a pack of lies,” began one polite and elegant missive we received yesterday from a Texas correspondent who described himself as a “lawyer and damn proud of it”).

December 6 – “Dial ‘O’ for Outrage”: some highlights from this site. Our editor’s November column in Reason, newly online, retells a few of the more colorful tales to appear on this site during its first weeks this summer. Among the highlights: the prosecution of the Florida man accused of felony parrot-dunking, the unusual relief sought by devout Hindu vegetarians in a lawsuit against Taco Bell, the “psychiatric disability dog” account that may have sounded like a shaggy-dog story unless you were the defendant, the legal woes of a California housing developer dragged to court for “discriminating” against lawyers, and a Canadian feminist’s complaint against Bugs Bunny. (Walter Olson, “Dial ‘O’ for Outrage, the Sequel: Tales from an Overlawyered America”, Reason, Nov. 1999 — full column).

December 6 – When agencies like getting sued. The Environmental Protection Agency gets sued a whole lot by private environmental groups, and according to Ben Lieberman of the Competitive Enterprise Institute we should not assume that it necessarily finds these suits unwelcome or resists with full vigor. “In fact, every time EPA ‘loses’ one of these cases, the result is an expansion of the agency’s power and authority.” The resulting settlement or court order obliges the agency to regulate some new area, while affording it political cover against the inevitable outcry from regulated parties. The ceaseless litigation enables lawyer-wielding activist groups to “set the nation’s environmental agenda to an extent few outside Washington realize.” One sign of whether the agency is unduly upset over its role as frequent defendant: “agency records…reveal that it hands out millions of taxpayer dollars to the very organizations that routinely take it to court.” (Ben Lieberman, “Environmental Sweetheart Suits”, Competitive Enterprise Institute Update newsletter, Oct. 21 — full article).

December 6 – “Patients’ rights”: a double standard? “Ironically, although the [Patients' Bill of Rights] bill would allow people to bring tort lawsuits against private-sector plans, it does not grant similar rights to Medicare beneficiaries or to those participating in the government’s health plan for federal workers.” Under present law, if Medicare disallows coverage for treatment it deems medically unnecessary, a beneficiary can go though an appeals process and eventually sue, but only for the cost of the treatment, the same as is now the case with private health plans under ERISA. Malpractice-like suits for pain and suffering and other “consequential” damages are barred. The same is true of beneficiaries under medical programs for federal employees.

“If it is good policy to give private workers the chance to recover noneconomic damages from their employers (directly or indirectly), why shouldn’t individuals covered under these federal programs have the same rights? The answer, of course, is that the federal government is not prepared to try to persuade taxpayers that the increased cost this would entail is a good use of their tax money or to persuade the beneficiaries to accept reduced benefits to offset these additional litigation costs. It is easier for the government to force private employers (and their employees, stockholders and customers) to bear them. If Medicare beneficiaries and federal employees demanded rights equal to those extended in the Patients’ Bill of Rights, the cost of the new legislation would be better appreciated.” — Washington attorney John Hoff, “Patients’ Rights: A Double Standard”, National Center for Policy Analysis “Brief Analysis” # 307, Dec. 3 (full paper).

December 3-5 – If true, then all the better. “Lawyers make claims not because they believe them to be true but because they believe them to be legally efficacious. If they happen to be true, then all the better; but the lawyer who is concerned primarily with the truth value of the statements he makes on behalf of clients is soon going to find himself unable to fulfill his professional obligation to zealously represent those clients.

“Another way of putting this is to say that inauthenticity is essential to authentic legal thought. Practicing lawyers must often maintain a peculiar mental state in which they fail — authentically — to recognize the inauthenticity of their claims. A lawyer must be authentically inauthentic, so much so that he can honestly (?) echo Samuel Goldwyn’s observation that the most important quality in successful acting is sincerity. ‘Once you’ve learned to fake that,’ Goldwyn observed, ‘you’ve got it made.’ It is, to say the least, an awkward state of mind, but it is the essence of the legal form of thought. And it is this form of thought that, ironically, preserves the lawyer’s sanity in the face of the madness of law.”

– From Jurismania: The Madness of American Law (Oxford, 1998) by Paul F. Campos, professor of law at the University of Colorado and director of the Byron R. White Center for American Constitutional Study; the book is now out in paperback (via Across the Board, Oct.).

December 3-5 – Microsoft roundup. We’ve found the Yahoo Full Coverage compilation to be the most useful overall starting point in keeping up with the siege of Redmond, and can also recommend the pages that Reason and the Financial Times put up collecting their own output on the case. Robert Samuelson argues in the Washington Post that the company’s hardball tactics toward competitors didn’t harm end-users (Nov. 17) and two antitrust boosters fired back with a response that ran Nov. 30 (links now dead). Money magazine’s Walter Updegrave asks (Nov. 15) why the Justice Department doesn’t try its hand at breaking up some monopolies that are considerably more resistant to innovation and competition as well as closer to its home base, such as the U.S. Postal Service (100 percent market share!), the Social Security system, and the U.S. Mint. And a group calling itself the DoJ (Department of Jest) has put out a MS-Monopoly board game that raised a smile. Like everyone else they’re kinda worried about getting sued, so much so that, anticipating that occurrence, they provided (it’s been removed) a handy form for visitors to use to sue them. Update: they have indeed had to pull down the page after legal saber-rattling by Hasbro, which puts out the real Monopoly game: see Aug. 16-17, 2000.

December 3-5 – Piece of the action. The Georgia Supreme Court has ruled that Liberty County Tax Commissioner Carolyn Brown should not have paid herself nearly $1 million in commissions from taxes she collected over a period of seven years. The ruling follows a crackdown on the practice that some Georgia local officials had pursued of diverting a share of tag fees and other public revenues to their own personal accounts, by way of a commission. Ms. Brown’s official stipend now stands at about $64,000 a year, but she’d been doing considerably better than that from the commission set-up. It’s no wonder a state would feel obliged to crack down on practices like this — otherwise, just to take one example, lawyers representing government entities might soon imagine that they had a right to pocket a share of the sums they recovered representing the public. Wait a minute — you mean they already do? (Lawrence Viele, “Tax Official Can’t Pocket $1M in Fees”, Fulton County Daily Record, Oct. 20 — full story).

December 3-5 – Weekend reading: evergreens. Pixels to fall back on after the bouts of cider-mulling and tree-trimming:

* Party of the first part wishes to make goo-goo eyes at party of the second part: if you get into the dangerous situation of feeling romantically attracted to someone at the office, lawyers at the firm of Littler Mendelson will help draw up a “love contract” designed to protect you and your employer from liability should things not work out. It will stipulate that you “independently and collectively desire to undertake and pursue a mutually consensual social and amorous relationship.” (Alex Fryer and Carol M. Ostrom, “Office sex almost never puts CEOs out of work”, Seattle Times, Sept. 28, 1998; James Lardner, “Cupid’s Cubicles”, U.S. News & World Report, Dec. 14, 1998; John A. Lehr, “Office Affairs”, Ventura County (Calif.) Star, Sept. 28, 1999, link now dead.)

* Probate and trust perils: This four-part investigation, entitled “Final Indignities”, won a Pulitzer Prize in 1995 for the St. Petersburg Times‘s Jeffrey Good. It found surprisingly lax oversight of probate abuses in the nation’s leading retirement state. (August 28 and successive Sundays, 1994).

* Race car great Bobby Unser got in trouble under environmental laws when his snowmobile got lost and broke down in a blizzard and was later found in a protected wilderness area. Was it the Sierra Club that sicked the feds on him? (Unser statement and discussion at oversight hearing on the Wilderness Act, April 15, 1997; David Wallis, “Bobby Unser: Race Car Champion as Scofflaw”, Salon, June 6, 1997; Unser testimony before the House Judiciary Committee May 7, 1998, reprinted in Federalist Society Environmental Law and Property Rights Working Group newsletter, v. 3, issue 1). Unser was convicted and made to pay to a small fine after a judge ruled that the prohibition against motorized vehicles in the 1964 Wilderness Act does not require an intent to break the law.

December 3-5 – Welcome KPRC talk radio visitors. Our Houston- and coastal Texas-specific stories include coverage of the junk fax saga in the Houston courts, the Toshiba settlement in Beaumont, and the doings of famed lawyer John O’Quinn.

December 2 – Connecticut, sue thyself. Connecticut attorney general Richard Blumenthal keeps Schuming up headlines by boosting lawsuits against gun manufacturers; he’s filed an amicus brief to support Bridgeport’s suit, and threatened to make his state the first of the fifty to join various big-city mayors in seeking to recover the costs of shootings. One especially ironic aspect of his aggressive role is that the very same state government he represents has itself been involved quite recently and deeply in promoting the manufacture of firearms. In 1990, the state was so concerned that the Colt Mfg. Company might close its doors that it invested $25 million in state workers’ pension fund money to finance a bailout plan. The investment proved disastrous, with the state losing all but $4 million of its outlay, and the fiasco played a major role in discrediting the then-popular idea of “social investment” of pension funds. There’s no doubt, however, that both its intended and actual result was to ensure the production of more guns by Colt — some of which inevitably found their way onto the scene of accidental or deliberate shootings. Nor did the state use its dominant financial position in the deal to attach many of the kinds of strings to gun distribution that the suits now blame gunmakers for not attaching. We eagerly await the Nutmeg State’s lawsuit against itself.

Connoisseurs of irony will also enjoy learning about the subsequent job history of then-Connecticut state treasurer Francisco Borges, who was a leading figure in the Colt pension-investment debacle. Mr. Borges has now moved on to become treasurer of none other than the National Association of Colored People, which has filed a much-publicized lawsuit against gun makers. The NAACP presumably should not be expected to add Mr. Borges to its list of named defendants, given that, if it obtains a cash settlement for its complaint, it will be putting him in charge of spending the resulting windfall.

Sources: Diane Scarponi, “Blumenthal supports Bridgeport’s lawsuit against gunmakers,” AP/Danbury, Ct. News-Times, Sept. 8; Marc L. Kaplan and Salo L. Zelermyer, “Conflict and Interest: An Analysis of the President’s Social Security Proposal”, National Taxpayers Union Foundation Issue Brief #109; Eric V. Schlecht, “Government-Sponsored Gun Lawsuits By The Numbers — Five Things You Probably Didn’t Know, But Should”, NTUF Issue Brief #118; Statement of Maureen Baronian, House Subcommittee on Social Security, March 3, 1999.

December 2 – “Actions without class”. Sizzling editorial in today’s Washington Post should lay to rest once and for all the notion that outrage at the overreaching of the Fourth Branch is somehow confined to the editorial writers at the Wall Street Journal. “One could hardly ask for a better portrait of everything that is predatory about class-action plaintiff’s lawyers” than the new Microsoft suits, the Post declares. “Cases such as these have next to nothing to do with the interests of consumers but are essentially commercial ventures within the judiciary.” The supposedly represented victims “are likely to get some token payment while their self-declared champions get millions of dollars. It is simple buzzardry.” As for HMOs, the tactic of torpedoing the companies’ stock price to get them to settle “isn’t law. It’s an extortion racket…..[W]here the interests of the consumers are so obviously being subordinated to those of their self-declared lawyers, class actions affect policy with far less democratic legitimacy than even those cases brought by advocacy groups acting on behalf of the public interest as they see it. It is long past time to reform this system.” If you agree, write to say so — you can bet the other side is preparing its letters (full editorial).

December 2 – “Who’s Afraid of Dickie Scruggs?” Big Newsweek profile of “Richard Furlow Scruggs, ‘Dickie’ to his friends, [who] may be the most influential man in America that you’ve never heard of,” and whose success in managing the political side of the tobacco heist from his base of operations in Pascagoula, Miss. had nothing whatever to do with the fact that he’s the brother-in-law of Senate Majority Leader Trent Lott. He’s now planning to apply to HMOs the lessons of the legal playbook that emerged from asbestos and tobacco: “Raise the stakes so high that neither side can afford to lose,” so there’ll have to be a settlement. Couldn’t Scruggs’s firm have been a little less grabby, and kept for itself less than $900 million or so in fees from the tobacco deal? “‘Then we wouldn’t have anything for the next round,’ he says.’” Aside from HMOs, any future projects? “After seeing what Wal-Mart has done to once thriving downtowns, Scruggs is toying with the idea of going after the giant retailer on antitrust grounds. ‘They’ve damaged the fabric of American life,’ he says. ‘It offends me.’”

Surprise revelation: as part of the HMO settlement he’s pushing, Scruggs actually favors capping annual damage payouts by the managed-care companies. That way “one or two ruinous judgments won’t bankrupt the industry (and leave companies unable to settle with trial lawyers)”. All is explained — when adopted for the right kinds of reasons, caps on damages turn out to be okay after all (Adam Bryant, Newsweek, Dec. 6, link now dead).

December 2 – Toshiba and Ford, in the same boat. “For years, America’s high-tech industry has been largely untouched by the worst excesses of mass litigation.” But after the one-two punch of the Toshiba settlement and Microsoft class actions, it’s time for Silicon Valley to realize it’s in the same boat on this issue with “smokestack” industry. An editorial in Financial Times draws an interesting parallel between the Toshiba laptop case and another “no-harm” mass-product-defect class action, against Ford Motor in California; which recently ended in a mistrial; the lawyers had gone to court to represent a class of car owners injured by the prospect that an alleged stalling defect might someday manifest itself in their Ford vehicles, though in practice they had never encountered it. (“Microsoft: Fighting Back”, Dec. 1 — full editorial)

December 1 – Indications of turbulence. An arbitrator has awarded veteran captain Wayne O. Witter, “known by his initials as ‘Captain WOW,’” partial back pay in his protracted dispute with Delta Air Lines. “The Atlanta-based carrier had removed him from duty and questioned his mental fitness to fly after he got into an argument with his co-pilot and flight engineer in the cockpit. That incident followed his arrest and commitment to a psychiatric hospital after he was accused of threatening his wife….His case was the subject of a page-one article in The Wall Street Journal in 1996, highlighting the difficulties airlines and regulators face in determining when a pilot’s mental state is grounds for removing him from duty.” Eventually Capt. Witter won a battle with the Federal Aviation Administration to get back his medical certificate, but too late to resume flying Delta passengers, since he’s now past the FAA’s age limit of 60 for commercial pilots. (Martha Brannigan, “Grounded Delta Pilot Wins Back Pay Following Dispute Over Mental Fitness”, Wall Street Journal Interactive Edition, Nov. 19 (online subscription required)).

December 1 – Starbucks toilet lawsuit. Nominated by reader acclamation: Lawyers for 37-year-old Canadian tourist Edward Skwarek are suing Starbucks over an August incident in which they say their client was seated on a toilet in one of the coffee chain’s outlets in Manhattan when a highly personal part of his anatomy got caught between the seat and the bowl. Skwarek is asking for $1 million for what he describes as dire and permanent injuries to the affected organ, and his wife is also requesting $500,000 as compensation for loss or impairment of his husbandly services. How much would they have to pay you, esteemed reader, to allow your name to be permanently associated with a news story of this sort in publications worldwide? (Reuters/Excite, Nov. 29, link now dead)

December 1 – Hurry with those checks. U.S. News & World Report reports in its “Whispers” column that the Association of Trial Lawyers of America is “begging” members to get those campaign contribution checks in the mail. “In South Carolina, ATLA executive Ken Suggs E-mailed members: ‘We are about to default on our pledge to the Gore campaign, something ATLA has never done before.’ In his note titled ‘future of the profession,’ he adds: ‘If any of you can afford any contribution (it has to be personal money), I would greatly appreciate it. Checks should be made to Gore 2000. Send them to me and I’ll get them to the campaign.’” (Dec. 6)

December 1 – Drunks have rights, too. In Kenner, Louisiana, this summer, a “drunken bicyclist who was seriously injured when he ran a stop sign and pedaled into the path of a police cruiser speeding to a call was awarded $95,485.” Judge Bob Evans ruled that a Kenner police officer shared responsibility for the accident with bicyclist Jerry Lawrence. “Lawrence’s lawyer, Rusty Knight, said the ruling proves that ‘drunks have some rights, too’”. Police said they would appeal. (“Drunken bicyclist awarded $95,485″, Spokane.Net, June 17; Canoe/AP) (update July 24, 2000: appeals court throws out verdict).

December 1 – Welcome The Occasional readers. This new literary review edited by Andrew Hazlett has plenty of content worth checking out, including writing by Richard Mitchell, Cathy Young and Lynne Munson and outbound links that will lead you to such wonders as — we would never make this kind of thing up — the early calypso music of Louis Farrakhan, complete with audio clips. We are its “Recommended Site of the Week”.

Tagged as: ACLU, Alabama, antitrust, asbestos, Atlanta, attorneys general, Baltimore, bankruptcy, Beaumont, Canada, Cincinnati, Colorado, Connecticut, Dallas, Delaware, Dickie Scruggs, emotional distress, fen-phen, Ford Motor, hospitals, Houston, John O'Quinn, Louisiana, Maryland, Mississippi, Ohio, Philadelphia, Public Citizen, Ralph Nader, Richard Epstein, San Diego, Seattle, South Carolina, Tennessee, tobacco, tobacco settlement, toilets, zero tolerance

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