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The Litigation Explosion

The vote was 325 to 91, with Reps. John Conyers (D-Mich.) and Mel Watt (D-N.C.) leading the opposition. Timothy Lee discusses in the Washington Post. While I haven’t tried to get into the details, the general drift looks quite good to me. One major provision requires those filing suits to plead with some specificity what the infringement is; another provides for losing parties to compensate prevailing parties toward the cost of the litigation in more cases; yet another attempts to forestall expensive discovery in cases destined to fail on other grounds. Readers who recall my first book, The Litigation Explosion, will recall that I recommended procedural reform as the most promising way to address the incentives to overlitigiousness in our legal system and in particular identified lack of fee shifting, anything-goes pleadings, and wide-open discovery as among the system’s key deficits. So, yes, developments like this make me feel I was on the right track.

Equal time dept.: Richard Epstein takes a different view.

July 26 roundup

by Walter Olson on July 26, 2010

  • Emerging newspaper business model: copyright lawsuits against bloggers? [Kravets, Wired, Ron Coleman, TechDirt, PoL]
  • Five NYC hospitals to use “health courts” to seek agreements before medical malpractice cases go to trial [WSJ]
  • Serpentine asbestos politics behind “California state rock” fracas [Cal Civil Justice, more, PoL, Bailey, earlier here and here]
  • From Andrew Grossman: “Feinberg: ‘priests, mayors or even sheriffs could vouch for [BP trust fund] claims of local businesses.’ Has he ever been to Miss, La.?!”
  • Va. lawyer, real estate agent sanctioned for “frivolous claims supported by wild speculation” [ABA Journal]
  • An injury lawyer reads and reacts to my first book, The Litigation Explosion [Alan Crede]
  • Le Corbusier’s writing made him sound like certain pro se litigants [Johnson, PrawfsBlawg]
  • “Tip: Photoshopping Self Into Charity Photos Not Likely to Reduce Sentence” [Lowering the Bar, more]

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…is not enough contact with the buyer’s state to subject you to the jurisdiction of its courts, according to a judge on Staten Island who ruled that even New York’s “long arm” law has its limits. (Mark Fass, “Contact Held Insufficient to Sue eBay Seller”, New York Law Journal, Mar. 7). I discussed the rise of long-arm jurisdiction, and the powerful impetus it can provide to litigation in many situations, in Chapter 4 (PDF) of my book The Litigation Explosion.

P.S. As commenter Elliot points out, “even” was not the mot juste in this circumstance; New York’s long-arm statute has never been interpreted as liberally as, say, California’s.

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Many large bookstores carry sections devoted to works of African-American interest, and a number of book clubs and other specialized selling channels do a thriving business by specializing in black themes and authors. In October, however, Florida-based author Nadine Aldred, who writes under the pen name “Millennia Black“, filed a pro se lawsuit in federal court in Manhattan against her publisher, Penguin Group, on the grounds that Penguin (she alleges) insisted on steering her work into black-interest channels although she would rather have been marketed as a general-interest author. On the Wrong Side of the Alligator has reprinted excerpts from the complaint (Jan. 6).

The estimation of whether a particular author’s work will sell better if marketed to a niche or to a more general audience is inescapably going to depend on case-by-case judgment (assuming that marketing dollars and available cues of cover design, etc. are limited and cannot be dispatched in both directions at once). It is not immediately apparent why Penguin would not have an interest in taking a path that maximized its author’s sales. Aldred’s suit asks $250 million. See also Jeffrey A. Trachtenberg, “Why book industry sees the world split still by race”, Wall Street Journal/Pittsburgh Post-Gazette, Dec. 6.

P.S. Disclosure, for whatever it’s worth: Penguin was my publisher on my first book (The Litigation Explosion).

More: Charles E. Petit of Scrivener’s Error writes to say:

The real problem in this instance is not with Penguin. The real problem is an antitrust nightmare: the book distribution system, which is probably the paradigmatic example of “one man’s antitrust is another man’s economy of scale”–at least until you look into the financing and terms of doing business, which makes me ask “What economies of scale?” The _distributors_ are the ones who demand “pigeonholing” of books, and Penguin’s best defense will be to point out that books that are released _without_ a category tend to stay in distributors’ warehouses unshipped. In other words, “We had to put _some_ category on it as a business necessity, and this is the one that in our commercial judgment was the best fit.”

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Contingency fee-o-rama

by Walter Olson on April 11, 2006

Anyone interested in the ethical, practical and philosophical case for and against the lawyers’ contingency fee (or contingent fee; usage varies) should be sure to check out two new resources:

* At Point of Law, the new Featured Discussion just underway pits George Mason lawprof Alex Tabarrok, who’s generally supportive of contingency fees, against Jim Copland of the Manhattan Institute, who’s critical;

* David Giacalone, who has written extensively on the problems inherent in protecting clients from overreaching by their lawyers, has now posted a four-part series (one, two, three, four) laying out his views on the pluses and minuses of the contingency fee more systematically than his blog posts have done up to now.

For my own views, see Chapter Two of my 1991 book The Litigation Explosion, which Point of Law has posted in PDF format.

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Roger Scruton interview

by Walter Olson on December 7, 2005

An excerpt from the interview (pt. II) with the British philosopher at Right Reason:

My advice to President Bush would be to look at the ways in which the power of the state might be needed in order to support the autonomous associations and ‘little platoons’ of American civil society. There are two evils in particular which need to be addressed: the litigation explosion, which has vastly increased the risk of small businesses, and also sown discord among neighbours; and the disaster of the inner cities, which have suffered from the worst effects of American zoning laws and laissez-faire aesthetics, with the result that the middle class has fled from the city centres, causing social decay at the heart, and an unsustainable growth in transportation and suburban infrastructure all around. I believe that federal policies could be initiated that would address both these evils, without increasing the role of the state in the conduct of litigation or in the planning of city streets.

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Blawg Review #33

by Walter Olson on November 21, 2005

Welcome to Blawg Review #33, the latest installment of the weekly carnival assembling some of the best recent weblog posts about law.

If this is your first visit to Overlawyered, we’re among the oldest legal sites (launched in July 1999, practically the Eocene era), and over the years we’ve built a vast collection of information (with links/sources) on strange, excessive and costly legal cases, examples of the over-legalization of everyday life, pointers on litigation reform, policy stuff of generally libertarian leanings, and much more. We’re a fairly high-volume site; 6-8,000 unique visitors on a weekday is pretty typical. And although our work is regularly critical of trends in the legal profession — or maybe because of that fact — practicing lawyers around the world are among our most valued and loyal readers.

More specifically, there are two of us posting here. One of us (Walter Olson) has been writing about these topics for twenty years as the author of several books (The Litigation Explosion, The Excuse Factory, The Rule of Lawyers) and a great many shorter articles. He’s a senior fellow at the Manhattan Institute who lives and works in Chappaqua, N.Y., north of New York City. More recently Ted Frank, who’s in Washington with the American Enterprise Institute, joined as a regular blogger. Unlike Walter, Ted is a lawyer, having practiced until lately with O’Melveny & Myers. Both of us also blog at the (somewhat more serious-toned) website Point Of Law, which unlike this one is sponsored by our respective institutes and boasts numerous other contributing writers.

Enough about us. Here’s Blawg Review #33, written by Walter with

indented sections by Ted.

* * *

The week in headlines

The talk of the blawg world last week? The New Yorker’s unmasking of the girlish “Article III Groupie” who’s blogged anonymously about federal judges at “Underneath Their Robes”, as, in fact, a (male) Assistant U.S. Attorney in Newark. Much more on that from Ted, below.

The pace of commentary on Samuel Alito Jr.’s Supreme Court nomination has slowed a good bit, despite the release of a 1985 memo detailing Alito’s views on abortion (which occasioned this post by Will Baude taking exception to a Dahlia Lithwick Slate column) and, more tantalizingly, on the Warren Court’s reapportionment cases (see posts by Nathan Newman and Steve Bainbridge). Alito is now heavily favored among bettors to win confirmation, notes San Diego lawprof Tom Smith.

Possibly the week’s strangest headline, discussed by J-Walk: “1,100 Lawyers Leave Saddam Defense Team”. 1,100?

And the Fifth Circuit is coming back to New Orleans (Tom Kirkendall).

* * *

Splendors and miseries of legal practice

Find out:

* What makes a talented 39 year old attorney burn out of a criminal defense practice? (Norm Pattis, Crime and Federalism)

* What sorts of squirm-inducing compliments do criminal defense lawyers hear from their clients after scoring legal points on their behalf? (Ken Lammers, CrimLaw)

* Is it smarter for big law firms to compensate their partners on an “eat what you kill” model, a “lockstep” model, or something between the two? (Bruce MacEwen, Adam Smith, Esq.)

* How do licensing professionals decide what’s a reasonable royalty rate? (Patent Baristas)

* What sorts of bad things can happen to a law firm when one of its individual lawyers behaves rudely to a stranger? (Jim Calloway)

* * *

Controversies galore

Read, ponder, and make up your own mind:

Did Texas execute an innocent man, Ruben Cantu? (Doug Berman)

Conservatives are still griping about the Ninth Circuit, but the new twist is that they think its judges aren’t activist enough. (Eugene Volokh)

Every so often, through luck or pluck, the “fair use” side manages to win one in copyright litigation (Ron Coleman, Likelihood of Confusion).

A group is “pushing for a ballot referendum that would strip South Dakota judges of their immunity from suit for actions taken in their capacity as judges.” Atlanta attorney Jonathan B. Wilson calls it “one of the worst reform ideas ever”.

Michael Newdow, of Pledge of Allegiance suit fame, has filed a new legal action demanding that the motto “In God We Trust” be removed from U.S. currency. Jon Rowe winces.

Our own Ted Frank takes a look at the much-talked of “Dodgeball” document and concludes that it by no means proves Merck’s guilt in the Vioxx matter. (Point of Law). Also at Point of Law, James Copland of the Manhattan Institute and Dr. Bill Sage of Columbia have been engaged in a spirited debate on med-mal litigation.

In a Providence courtroom, the state of Rhode Island is demanding that companies that once manufactured lead paint be held liable for the cost of lead abatement programs. Speechwriter/ghostwriter Jane Genova is liveblogging the case’s retrial, and suggests that the defense side has been making its points more effectively.

A court has ordered the Armour Star meatpacking concern to pay $3 million for using a strength test to screen applicants for a job requiring much lifting. George Lenard’s Employment Blawg originally covered the case last month, Overlawyered picked it up, and now George has returned to the subject, observing that those dissatisfied with the suit’s outcome should realize that sex discrimination law’s distrust of strength tests isn’t something the EEOC just came up with the other day and in fact dates back at least a couple of decades. (I quite concur, having written at length on the subject back in the 1990s.)

The British government recently published a white paper entitled “The Future of Legal Services: Putting the Consumer First”. Dennis Kennedy at Between Lawyers provides a link.

In other consumer news, State Farm conceded earlier this year that when it disposed of many wrecked-and-repaired vehicles it failed to ensure that they were given appropriate “salvage titles”. E.L. Eversman at AutoMuse has been following the issue.

The head of the NY state bar association is advising prospective clients not to be swayed by lawyers’ advertising. David Giacalone, who frequently discusses legal advertising on his blog f/k/a, isn’t impressed.

San Diego lawprof Gail Heriot discovers a convicted rapist is living a few doors down from her, which gets her to thinking about the interaction of “Megan’s Law” statutes and statutory rape.

New York AG Eliot Spitzer has gone after former NYSE head Richard Grasso but not the board that approved Grasso’s plans. Larry Ribstein suspects the worst, charging that Spitzer “gets securities industry political support if he handles this so only Grasso gets hurt.”

* * *

Student division

Scheherezade at Stay of Execution, who wrote a classic post last year giving advice on whether or not to go to law school, now fields a reader’s question: Should I transfer to a higher-ranked law school?

Called for jury duty, Jeremy Blachman gets shown a somewhat hokey video entitled “Your Turn: Jury Service in New York State.” “I wanted to really mock the video, but in all honesty it was a better explanation of the jury system than anything we got in law school”.

Michael Froomkin offers a surprising and counterintuitive quiz on the U.S. Constitution in the form of a “scavenger hunt”. He also suspects that a national ID card might abet price discrimination.

And this from Ted:

Congratulations to Amber, G, Marissa, Grigori, Eve, Jeremy, and others who passed the bar. Third Attempt failed for the second time, and is opening a blog on the subject of his third try, with links to other passers and failers. Only 13% of those who repeated the California bar passed.

On the lighter side, law student Kurt Hunt quotes his prof’s maxim that “Cahoots is not a crime” but wonders what would happen if “tomfoolery, cahoots, no-gooding, antics and shenanigans were redefined as ‘Crime-Lite’”. And Colin Samuels of Infamy or Praise is among the many human beings who don’t manage to eat as well as (UCLA lawprof) Steve Bainbridge’s dog.

* * *

Buzz about blogs

Now I’ll turn the floor over to Ted again to discuss the UTR affair:

The blawgosphere likes nothing more than navel-gazing, and the New Yorker’s outing of anony-blawger “Article III Groupie” as Newark AUSA David Lat and resulting implosion of “her”/his popular “Underneath Their Robes” blawg has generated lots of curiosity and posts with Austin Powers references; the story even made Drudge and the New York Times. Blawg Review has a retrospective look at the blawg. Howard Bashman has done the most original reporting, interviewing Jeffrey Toobin, who revealed Lat’s identity, and publishing the reminiscences of a former co-worker of Lat’s. Denise Howell provides an obituary for the blawg. The Kitchen Cabinet’s “Lily” comments from the perspective of another anonymous blawger, as does Jeremy Blachman, who got a book deal from his anony-blogging. Ann Althouse muses on the nature of humor; Professor Solove and Howard Bashman comment on blogger anonymity, as does Half Sigma, who pulled a similar hoax using the photo of a Russian mail-order bride earlier this year as the image of “Libertarian Girl.” Another blawgger claiming to be a libertarian female, this one with the implausible name of “Amber,” meta-comments on the various shattered blog-crushes exhibited in the garment-rending Volokh Conspiracy reader comments on the subject; JD expresses his own disappointment. (Judge Kozinski claims to have known all along, but Judge Posner has proof of his foresight.) And Ian has sound commentary on A3G’s “status anxiety.” (And speaking of status anxiety, a Harvard Law School admissions dean snarks on Yale and gets snarked back. One can understand the sniping: HLS and YLS are good schools, and there’s a lot of competition for who’s #2 behind Chicago Law.)

Some fallout: anony-blogger “Opinionistas” got an e-mail accusing her of really being a man, and Will Baude and Heidi Bond make a bet over the gender of anony-law-prof Juan Non-Volokh, who promises to come out of the closet soon.

Taking second place in interblog buzz is the IP sticky wicket that awaited the former Pajamas Media (discussed by Blawg Review here) when shortly before launching it decided to switch to the more dignified monicker of Open Source Media. Turned out there was already a well-known public radio show by the name of Open Source which hadn’t been consulted even though it occupied such URLs as opensourcemedia.net. Ann Althouse has been merciless (here, here and here) in needling the OSM organizers, while Prof. Bainbridge piles on with a law and economics analysis of OSM’s market.

Monica Bay passes along the views of legal-tech consultant and frequent CLE presenter Ross Kodner, who charges that law blogs are “narrow-minded” and display “elitist exclusionism”. “I am sick and tired of being repeatedly asked why I don’t have a blog,” he declares. Okay, Mr. Kodner, we promise never to ask you that.

* * *

In conclusion

Finally, intellectual property lawyer Doug Sorocco, of the ReThink(IP) and phosita blogs, arrives “fashionably late to the BlawgThink ball” (in Chicago last week). Sorocco’s Oklahoma City firm also figures prominently (as the acquiring party) in what Dennis Kennedy says may amount to a milestone: “the first move of one legal blogger to the law firm of another legal blogger.” Stephen Nipper has more details about this “move” at ReThink(IP).

By coincidence, and giving us a nice way to wrap things up, phosita is going to be the home of next week’s Blawg Review #34. Blawg Review has information about that and other upcoming matters, as well as instructions how to get your blawg posts considered for upcoming issues.

P.S. As Bob Ambrogi notes, you can now check out — and tag your own location in — Blawg Review’s reader map feature.

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Twelve years after the event, a jury finds someone to blame for the Islamist van-bomb attack that killed six, injured nearly 1,000, and caused costly business dislocation (Sept. 21, 2005, Dec. 5, 2004, Oct. 12-14, 2001). The culprit? The Port Authority, an agency whose losses are likely to be ultimately borne by New York and New Jersey taxpayers, motorists and air travelers:

The jury voted unanimously that the Port Authority [then-owner of the WTC] was negligent. It found the authority 68 percent at fault for the bombing, while the terrorists who carried it out were 32 percent at fault.

Mr. [David J.] Dean, the plaintiffs’ lawyer, said that because the jury apportioned more than half the blame to the Port Authority, the agency will have to pay 100 percent of any damages for pain and suffering, the so-called non-economic damages, that might be awarded.

Regardless of how the blame was shared, the Port Authority would have to pay 100 percent of any economic damages, like lost business, he said.

Separate legal proceedings will be used to determine actual payouts; “Lawyers for the plaintiffs said they were seeking a total of as much as $1.8 billion.” And this from Mr. Dean: “The case was never about blaming the terrorists.” Well, of course it wasn’t, from his point of view, was it? (Anemona Hartocollis, “Port Authority Found Negligent in 1993 Bombing”, New York Times, Oct. 27).

So there you have it. “What is robbing a bank compared with founding a bank?” wrote Bertolt Brecht, and now we learn that being the target of a terrorist act carries with it more than twice as much responsibility for the resulting damage as actually planting and detonating the bomb. The jury’s (and plaintiff’s lawyer’s) rationale was that security experts had warned that the use of car bombs was on the rise, and yet the PA did not take the (massively disruptive to its tenants) step of closing its enormous underground garage to the public. Inevitably, the lawyers portrayed the earlier advice as a “smoking gun”, a strategem I describe in Chapter 6 of The Litigation Explosion:

Among the favorite smoking-gun generators are memo debates or unheeded suggestions within an organization. The sought-after memo will advise the hotel to dismantle the diving board, the brokerage to go easy on the risky investment, the magazine to kill the hard-hitting investigative story, the hospital to close down the vaccination program that has attracted malpractice suits. (They knew it was wrong to go ahead!) New York City injury king Harry Lipsig’s law firm got a $1.8 million settlement for forty-six-year-old postal worker Freddie Brown, mugged and badly hurt in a housing project lobby, after they found a security specialist whose recommendations to upgrade security at the project had gone unheeded. “We couldn’t lose,” jubilated lawyer Thomas Stickel. “With that witness, we had the city by the throat.” Actually, it would be a wonder if the files of a city as intensively governed as New York did not contain unheeded recommendations by the bushelful on countless subjects.

The logic of lawyers’ search for “smoking guns” is that an organization faces one of three unattractive choices: put itself at risk for verdicts like this; implement any and all recommendations it gets from security experts, no matter that many of them will be costly and intrusive (like, say, stadium patdowns for football fans) and will guard against dangers that never would have materialized; or alternatively, arrange its affairs so that fewer safety recommendations enter its files in the first place, either by asking its experts to commit fewer ideas to paper, or just by not employing them. The New York Sun quotes me today in its coverage of the story: David Lombino, “Port Authority Is Held Liable in Bombing That Killed Six in 1993 Attack on WTC”, New York Sun, Oct. 27. More:Ann Althouse and commenters discuss the verdict, while Michael Krauss at Point of Law hopes it will be thrown out on grounds of lack of proximate cause.

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Teacher’s pet barracuda

by Walter Olson on September 6, 2005

Via Lyle Roberts at 10b-5 Daily (Aug. 29), we learn of the latest advance in methods guaranteed to bring us a more ruthless legal profession: “Christopher Waddell, general counsel of the California State Teachers’ Retirement System, said that he uses both bounty and sliding-scale fees in order to ‘incentivize’ his outside counsel to go after personal assets. CalSTRS, the nation’s third-largest public pension fund, has promised its lawyers a 2.5 percent bounty, plus an undisclosed fee, in a pending suit against the former directors of WorldCom.” (Sue Reisinger, “Securities Fraud: Attorneys Are Receiving Bounties for Pursuing Officers and Directors”, Corporate Counsel, Aug. 24). For the reasons most other countries’ legal systems consider contingency fees for lawyers to be unethical, see Chapter 2 (“A Piece of the Action”) of The Litigation Explosion (PDF).

The law firm of Cellino & Barnes bills itself as the largest personal injury firm in western New York, and the “faces of [name partners Ross M.] Cellino and [Stephen E.] Barnes grace a reported 150 billboards across upstate New York. The attorneys’ names and likenesses frame their phone number and the one-word question ‘Injured?’” However, the firm has now gotten itself into hot water: an appellate panel has suspended Cellino and censured Barnes for, among other infractions, “advancing financial assistance to clients that was unrelated to the expenses of litigation”.

The unanimous five-judge panel found that Cellino and Barnes advanced financial assistance to clients beyond the expenses of litigation and, when they subsequently became aware that such actions violated the disciplinary rules, “arranged for the establishment of, funded and controlled [a] company owned by respondent Cellino’s cousin and that they did so in order to continue loaning money to clients.”

At common law, champerty (supplying clients with money in exchange for a share in the action) and maintenance (supplying them with money in order to keep their lawsuits going) were both offenses, but the prohibitions have tended to fall into disuse or to be repealed outright in recent times. On champerty, see Jun. 19, 2005, Jun. 27, 2004, Oct. 25, 2003, and this excerpt from The Litigation Explosion. (Mark Fass, “Bad Lawyer, No Billboard”, New York Law Journal, Jun. 14; Michael Ziegler, “Cellino & Barnes leaders punished”, Rochester Democrat & Chronicle, Jun. 11; Rick Pfeiffer, “Lawyers Cellino and Barnes found guilty of violating conduct code”, Tonawanda News, Jun. 11). More on the Barnes law firm: Jan. 31, 2006.

Broadcast appearances

by Walter Olson on July 1, 2005

I’m scheduled to join a reporter and anchor in the studios of New York’s WCBS-Channel 2 this afternoon to discuss the retirement of Justice Sandra Day O’Connor; look for me sometime in the 5-to-6 p.m. slot.

More (7:30 p.m. Eastern): I’ll be on WCBS-TV again tomorrow between 9 and 10 a.m. for a second appearance. And (updated) on Monday morning I did two Texas radio phone interviews, including KTSA (San Antonio) with Steve Gehrlein, on the battle over Justice O’Connor’s seat, and KOLE (Beaumont), on the litigation explosion. P.S. on WCBS I mentioned Judge Edith Jones. It’s fun to be a mentioner!

Courts stoking the litigation explosion: “For years, companies that sponsor higher risk activities such as scuba diving and skydiving have asked participants to sign waivers designed to absolve them from lawsuits if injury or death results. Yesterday, a [New Jersey] state appeals court declared those release forms do not bar relatives from filing a wrongful death lawsuit. … The court said while [Eugene J.] Pietroluongo [who died in a scuba diving accident at age 44] had the power to sign away his right to sue, the law did not allow him to sign away the rights of his survivors to bring a wrongful death lawsuit.” The court declared the waiver, voluntary or no, to be unenforceable as a policy matter. Attorneys, presumably deadpan, said the decision “could result in more lawsuits”. (Kathy Barrett Carter, “Survivors can sue despite a waiver”, Newark Star-Ledger, Apr. 13)(& letters to the editor, Jul. 26: first, second).

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Lawsuit-funding companies, which advance litigants cash in exchange for a share of the eventual booty, have apparently departed the state of Ohio since a decision this summer by the Ohio Supreme Court (see Aug. 4) finding that such activities violate a 180-year-old state law against champerty and permit intermeddlers to “gorge upon the fruits of litigation”. “Several states, including Massachusetts, New Hampshire and South Carolina, have lifted their prohibitions against the practice. At least 100 lawsuit-funding companies have emerged nationwide since 1998 when Perry Walton, a litigation-finance pioneer from Nevada, started holding seminars to teach other entrepreneurs how to make money by doing what some critics say is akin to betting on lawsuits.” (“Lawsuit-funding companies avoid Ohio after court ruling”, AP/Miami Herald, Oct. 1)(more on champerty, from The Litigation Explosion).

The following links and commentaries were written circa 1999 for Overlawyered.com.

Chapter 1 of your editor’s The Litigation Explosion (1991), unfortunately not online, tells the story of how in the 1970s the mood in elite legal circles changed: client-chasing by lawyers, long considered a serious ethical breach, began to be viewed less unfavorably as litigation itself came to be seen as socially positive rather than destructive.  The shift culminated in decisions by the U.S. Supreme Court  according Constitutional protection to most lawyer advertising and some solicitation. 

Solicitation: some extreme cases

Among cases mentioned in The Litigation Explosion are those where lawyers’ agents posed as a priest to mingle among grieving families after an air crash, and as Red Cross workers to dig out and sign up survivors after a store collapse.  (Even in today’s much-relaxed climate, these sorts of practices still expose attorneys to punishment if they can be proved.)  Ken Dornstein’s book Accidentally on Purpose reports on how personal injury operators set up a supposed religious charity, the “Friends of the Friendless”, whose real function was to secure them access to patients in the giant Los Angeles County Medical Center; “techniques included pressing an unconscious patient’s inked thumb to a legal retainer and threatening those who said no with deportation”. 

This September 1998 Cincinnati Enquirer article reports on a case where a lawyer was accused of soliciting a dead man.

Lawyer promotion on the Web: 

Client-chasing lawyers pioneered spam in the notorious 1994 “green card lawyers” episode, in which an Arizona law firm posted an ad to several thousand Usenet newsgroups offering immigration services; the fury among Netizens went on for months.  This account is by David Loundy in the Chicago Daily Law Bulletin.

Two articles still worth a look, though written at a time when web technology was in its infancy, are “Pushing the Advertising Envelope” by T.K. Reid (State Bar of Georgia) and Mark Hankins, “Ambulance Chasers on the Internet: Regulation of Attorney Web Pages” from the Spring 1996 Journal of Technology Law and Policy (U. of Fla. Law School).  Hankins writes that “the Web is unfortunately already home to undignified attorney advertising, including a DUI attorney who sponsors a ‘drunk browsing test’ inviting users to perform the tongue-in-cheek computer equivalent of a roadside sobriety test”.  (That link is gone, however.) Reid reported, “In an informal poll I did of ten attorneys owning sites on the Web, I inquired as to what steps they had taken to insure that their page complied with their State Bar’s rules for advertising. To my great surprise several responded that they did not consider their sites to constitute advertising, and therefore had done nothing. Instead of advertising their services as an attorney, they maintained that they were acting in another role – that of a publisher of free information.”

Which brings us to “Ethics Spotlight: Attorney Malpractice for Web Site Content” by Laura W. Morgan, part of the Divorce.Net site.  Morgan looks at the question whether lawyers might be liable for offering bad advice on their websites which visitors rely on to their detriment.  The general answer is no, because law-firm websites are usually well plastered with disclaimers saying, “this isn’t real advice and don’t even think of relying on it”.  Fair enough, except that the same lawyers often aren’t so willing to respect other people’s attempts to disclaim liability.

Essay on loser-pays

by Walter Olson on June 14, 2003

The following essay was written circa 1999 by our editor and formerly appeared on the site’s topical page on loser-pays.

* * *

America differs from all other Western democracies (indeed, from virtually all nations of any sort) in its refusal to recognize the principle that the losing side in litigation should contribute toward “making whole” its prevailing opponent.  It’s long past time this country joined the world in adopting that principle; unfortunately, any steps toward doing so must contend with deeply entrenched resistance from the organized bar, which likes the system the way it is.

Overlawyered.com‘s editor wrote an account in Reason, June 1995, aimed at explaining how loser-pays works in practice and dispelling some of the more common misconceptions about the device.  He also testified before Congress when the issue came up that year as part of the “Contract with America”.  Not online, unfortunately, are most of the relevant sections from The Litigation Explosion, which argues at length for the loser-pays idea, especially chapter 15, “Strict Liability for Lawyering”.

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Madison County, Ill., 2003:To tame Madison County, pass the Class Action Fairness Act“, Jun. 12-15; “The intimidation tactics of Madison County“, Jun. 9; “‘Lawyers who won $10 bil. verdict had donated to judge’“, Apr. 30; “A bond too far“, Apr. 4-6; “Appeals bonds, again“, Apr. 2-3; “Mad County pays out again” (“light” cigarette class action), Mar. 24. 2002:Malpractice-crisis latest: let ‘em become CPAs“, Oct. 7-8; “Intel sued in notorious county“, Aug. 30-Sept. 2. 2000: Update: Publishers’ Clearing House case“, Feb. 29. 1999:  “Criticizing lawyers proves hazardous” (columnist Bill McClellan makes fun of class-action attorneys, they sue him for libel), Nov. 4 (& Nov. 30; Feb. 29, 2000)

Securities class actions, 2003:Prospering despite reform“, May 5; “‘Lawyers find gold mine in Phila. pension cases’“, Mar. 21-23; “NYC challenges class action fees; taxpayers save $200 million“, Feb. 28-Mar. 2 (& Jun. 20, 2000). 2002:Updates” (Ninth Circuit ruling), Oct. 1-2; “Second Circuit: we mean business about stopping frivolous securities suits“, Aug. 29-Sept. 2; “Financial scandals: legislate in haste“, Jul. 12-14; “‘How to stuff a wild Enron’“, Apr. 22; “Judge compares class action lawyers to ‘squeegee boys’“, Apr. 18.  2001:Short-sellers had right to a drop in stock price“, Nov. 12; “Third Circuit cuts class action fees” (Cendant, CBS/ Westinghouse), Sept. 25-26 (& on Cendant, June 20, Sept. 4, 2000); “Dotcom wreckage: sue ‘em all“, Aug. 7-8; “’2d Circuit Upholds Sanctions Against Firms for Frivolous Securities Claims’” (Schoengold & Sporn), July 23; “Razorfish, Cisco, IPO suits“, May 22; “Securities law: time for loser-pays“, Mar. 2-4; “3Com prevails in shareholder suit“, Feb. 21-22; “$1,000/hour for shareholder class lawyers” (Aetna case), Feb. 14-15; “What they did for lead-plaintiff status?“, Jan. 18 (& see Feb. 21-22). 2000:Did securities-law reform fail?“, Nov. 10-12; “Emulex fraud: gotta find a defendant“, Sept. 4; “Fortune on Lerach“, Aug. 16-17; “Lion’s share” (commodity brokerage case), May 5-7; “Fee shrinkage“, May 3; “Celera stockholders vent at Milberg Weiss“, Apr. 25-26.  1999: Piggyback suit not entitled to piggybank contents” (Second Circuit rejects fees in Texaco action), Oct. 9-10; “Effects of shareholder-suit reform“, Sept. 22.

Fee review, 2003:Vitamin class action: some questions for the lawyers“, May 28; “Sauce for the gander dept.“, May 19; “NYC challenges class action fees; taxpayers save $200 million“, Feb. 28-Mar. 2 (& Jun. 20, 2000). 2002:FTC cracks down on excessive legal fees“, Oct. 1-2; “Smog fee case: ‘unreal world of greed’“, Jul. 24.  2001:Court’s chutzpah-award nominee” (Wells Fargo), Oct. 17-18; “Third Circuit cuts class action fees” (Cendant, CBS/ Westinghouse), Sept. 25-26 (& on Cendant, June 20, Sept. 4, 2000); “Coupon settlement?  Pay the lawyers in coupons“, Mar. 16-18.  2000:Fee shrinkage“, May 3; “‘Accord tossed: Class members ‘got nothing’” (Equifax, 7th Circuit), Jan. 6. 1999:Class action fee control: it’s not just a good idea, it’s the law” (Ninth Circuit on “separately negotiated” fees), Nov. 30; “Piggyback suit not entitled to piggybank contents” (2nd Circuit, Texaco), Oct. 9-10. 

Milberg Weiss Bershad Hynes & Lerach, 2003:Prospering despite reform“, May 5; “Milberg copyrights its complaints“, Jan. 3-6.  2002:Updates” (Ninth Circuit ruling), Oct. 1-2; “Smog fee case: ‘unreal world of greed’“, Jul. 24 (& Dec. 5, 2000, Jun. 22-24, 2001); “Judge compares class action lawyers to ‘squeegee boys’“, Apr. 18; “Milberg faces second probe” (Phila. politics), Feb. 27-28; “‘Probe of Milberg Weiss has bar buzzing’“, Jan. 28-29; “‘In a class of his own’” (Melvyn Weiss profiled in The Economist), Jan. 21-22.  2001:NFL satellite ticket class action“, June 5 (& update Aug. 20-21: court disallows settlement); “Update: cookie lawsuit crumbles“, May 9; “‘Lawyers to Get $4.7 Million in Suit Against Iomega’” (zip drive defect allegations), May 8; “California electricity linkfest” (representing San Francisco), March 26; “(Another) ‘Monster Fee Award for Tobacco Fighters’” (Calif. cities and counties), March 21-22; “3Com prevails in shareholder suit“, Feb. 21-22; “$1,000/hour for shareholder class lawyers” (Aetna case), Feb. 14-15; “What they did for lead-plaintiff status?“, Jan. 18 (& see Feb. 21-22).  2000:Fortune on Lerach“, Aug. 16-17; “Fee shrinkage“, May 3; “Celera stockholders vent at Milberg Weiss“, Apr. 25-26; “Class-actioneers’ woes“, Mar. 1; “Pokemon litigation roundup“, Jan. 10 (& Oct. 1-3, Oct. 13, 1999). 

Toshiba laptop settlement: see separate page on high-tech law

Microsoft class actions:Microsoft case and AG contributions“, Apr. 3-4, 2002; “Columnist-fest” (proposed settlement), Nov. 27, 2001; “Hiring talent from the opposing camp“, Feb. 28, 2000; “In race to sue Microsoft, some trip“, Dec. 23-26; “Microsoft roundup“, Dec. 3-5; “‘Actions without class’“, Dec. 2; “Class actions vs. high-tech“, Nov. 23; “Vice President gets an earful“, Nov. 22; “Microsoft roundup“, Nov. 17; “Fins circle in water“, Nov. 13-14; “Microsoft roundup“, Nov. 11; “Microsoft ruling: guest editorials“, Nov. 8; “Why doesn’t Windows cost more?“, Oct. 27; “Are you sure you want to delete ‘Microsoft’?“, Oct. 11. 

Employment class actions: see separate page on employment law.


Overlawyered.com commentaries:

Texas’s giant legal reform“, Jun. 18-19, 2003.

To tame Madison County, pass the Class Action Fairness Act“, Jun. 12-15, 2003; “‘Reforming class action suits’” (Class Action Fairness Act), Apr. 25-27, 2003.

Judge kicks class-action lawyers off case” (H&R Block), May 15, 2003.

Class action lawyer takes $20 million from defendant’s side“, Mar. 15-16, 2003.

FBI probes Philadelphia’s hiring of class action firm“, Jan. 31-Feb. 2, 2003.

Ninth Circuit panel sniffs collusion in bias settlement fees“, Dec. 16-17, 2002.

Auctions:Third Circuit cuts class action fees“, Sept. 25-26, 2001; “Letter to the editor” (competitive bidding for class representation), Jun. 13, 2001 (& Oct. 1-2, 2002). 

7,000 missing colors, many of them crisply green“, Aug. 29, 2002. 

‘Junk-fax’ suit demands $2 trillion“, Aug. 26, 2002; “Junk-fax litigation: blood in the water“, July 24, 2001; “Junk-fax bonanza“, March 27, 2001; “Junk fax litigation, continued“, March 3-5, 2000; “In Houston, expensive menus” (unsolicited faxes), Oct. 22, 1999. 

Penthouse sued on behalf of disappointed Kournikova-oglers“, Jun. 3-4, 2002. 

The mystery of the transgenic corn“, May 14-15, 2002. 

Editorial-fest“, Mar. 11, 2002; “Washington Post on class action reform” (good editorial), Aug. 29-30, 2001; “Actions without class” (Washington Post editorial), Dec. 2, 1999. 

The thrill of it all: plaintiffs win 28 cent coupon“, Feb. 27-28, 2002. 

‘Toyota buyers’ suit yields cash — for lawyers’“, Feb. 18-19, 2002; “Golf ball class action” (Acushnet Co.), Nov. 18-19, 1999; “Class action coupon clippers” (Washington Post on settlement abuses), Nov. 15, 1999. 

‘Congress looks to change class action system’“, Feb. 11-12, 2002; “‘They’re making a federal case out of it … in state court’“, Nov. 7-8, 2001. 

Selling out the class?” (allegations of collusive settlement in H&R Block case), April 5, 2001 (& see Dec. 3). 

Swiss banks vindicated“, Nov. 1, 2001. 

Letter to the editor (lawyers’ own incremental billing disclosed?), Oct. 22, 2001 (& see Dec. 3). 

Counterterrorism bill footnote” (forum shopping), Oct. 16, 2001; “Best little forum-shopping in Texas” (class actions make their way to Texarkana), August 27, 1999. 

Employment class actions: EEOC to the rescue“, Sept. 10, 2001. 

220 percent rate of farmer participation” (USDA black farmer settlement), July 25, 2001.

The rest of Justice O’Connor’s speech“, July 6-8, 2001. 

Blockbuster Video class action“, June 11, 2001 (& see July 3-4 (Vince Carroll column)). 

Letter to the editor” (First USA credit cards), June 13, 2001; “Bank error in your favor” (credit card holders), Sept. 27-28, 2000; & letter to the editor, Sept. 3, 2001. 

Ghost blurber case“, June 12, 2001. 

NFL satellite ticket class action“, June 5, 2001 (& update Aug. 20-21: court disallows settlement). 

Insurance class settlement scuttled“, Feb. 26, 2001. 

Florida lawyers’ day jobs, cont’d” (hotbed of class action filing), Dec. 11-12, 2000; “Florida’s legal talent, before the Chad War” (Florida Marlins ticketholders), Dec. 8-10, 2000. 

Obese soldiers class action“, Nov. 10-12, 2000. 

Sweepstakes, for sure” (American Family Publishers), Oct. 20-22, 2000; “Update: Publishers’ Clearing House case“, Feb. 29, 2000. 

Courtroom crusade on drug prices?“, Oct. 19, 2000. 

Class actions: are we all litigants yet?“, Aug. 23-24, 2000. 

Coke:Class-action lawyers to Coke clients: you’re fired“, July 21-23, 2000; “‘Coke plaintiff eavesdrops on lawyers; case unravels’” (what do lawyers tell each other after they think their clients have hung up on the conference call?), July 19-20; “‘Ad deal links Coke, lawyer in suit’” (Willie Gary, suing Coke, cuts lucrative ad deal with it), May 11, 2000.

Target Detroit” (lawyers countersue DaimlerChrysler and exec personally), July 19-20, 2000; “Turning the tables” (DaimlerChrysler sues class action lawyers), Nov. 12, 1999. 

Class-action assault on eBay“, July 13, 2000. 

AOL ‘pop-up’ class action” (ads said to be unfair), June 27, 2000. 

Rise, fall, and rise of class actions” (enormous increase in filing rates in past decade), Mar. 10-12, 2000. 

Criticizing lawyers proves hazardous” (columnist Bill McClellan makes fun of class-action attorneys, they sue him for libel), Nov. 4, 1999 (update Nov. 30: he criticizes them again, though suit is still pending); “Update: Publishers’ Clearing House case” (judge approves settlement including legal fee request; agreement reached to end libel suit), Feb. 29, 2000. 

Secrets of class action defense“, Feb. 25, 2000; “Mobile Register probes class action biz” (BancBoston and other mortgage escrow cases), Feb. 7, 2000. 

AOL upgrade’s sharp elbows“, Feb. 12-13, 2000. 

Weekend reading: columnist-fest” (Laura Pulfer on suit against Ralph Lauren outlet stores; Alex Cockburn on Swiss banks), Feb. 5-6, 2000. 

From our mail sack: unclear on the concept“, Jan. 28, 2000. 

Santa came late” (suit against Toys-R-Us for missing Christmas delivery), Jan. 19, 2000. 

Pokemon litigation roundup“, Jan. 10, 2000;  “Pokemon cards update“, Oct. 13, 1999; “Pokemon-card class actions“, Oct. 1-3, 1999

Expert witnesses and their ghostwriters” (life insurance class actions), Jan. 4, 2000. 

Lawyers for famine and wilderness-busting?” (anti-biotech), Jan. 3, 1999. 

Class action toy story” (antitrust), Dec. 29-30, 1999. 

‘In race to sue Microsoft, some trip’” (lawyers inadvertently copy details of pleadings in earlier cases), Dec. 23-26, 1999. 

Rolling the dice, cont’d” (suits over online gambling), Dec. 7, 1999 (earlier report, Aug. 26). 

Beware of market crashes” (class action sought against E*Trade for alleged computer-related trading losses), Nov. 26-28, 1999. 

Are they kidding, or not-kidding?” (proposals for suits against makers of fattening foods, losing sports teams), Nov. 15, 1999. 

Public by 2-1 margin disapproves of tobacco suits” (if class actions are filed on behalf of the public, why don’t they reflect public opinion?), Nov. 5-7, 1999. 

Demolition derby for consumer budgets” (class action against State Farm over generic crash parts), Oct. 8, 1999. 

Power attracts power” (Boies joins anti-HMO effort), Sept. 30, 1999; “Impending assault on HMOs“, Sept. 30. 

$49 million lawyers’ fee okayed in case where clients got nothing” (secondhand smoke action), Sept. 28, 1999; “Personal responsibility takes a vacation in Miami” (tobacco class-action verdict), Jul. 8, 1999.

Judge throws out four WWII reparations lawsuits“, Sept. 20, 1999. 

Tainted cycle” (Milwaukee taxpayers sue themselves), Sept. 2, 1999. 

Three insurers sued for $100 million” (how the press covers class action announcements), Aug. 20, 1999.


Resources on class actions are found at many different places on Overlawyered.com.  For example, most of the massive lawsuits filed against individual industries over personal injury to classes of consumers are covered on pages specific to the subject matter of the cases, such as the pages on firearms litigation, tobacco litigation, managed-care litigation, breast implant litigation, product liability, and so forth. 

This page assembles resources on class actions as a procedural device and as an institution.  Among topics covered are the unique role in this area of an “entrepreneurial” plaintiff’s bar that decides on its own behalf who and how to sue and lines up clients as needed; the history of the device and the reasons why it is either sharply limited or virtually unknown in the courts of other industrial democracies; the distinctive ethical problems that arise because of the extreme difficulty of policing lawyers’ faithfulness to the interests of the absent class; and the operations of the class action “industry” in the areas in which it has been a familiar part of the American legal landscape for decades, namely shareholder litigation and class actions over consumer and antitrust grievances aggregating large numbers of (usually smallish) claims. 

Background — procedural history, ethical issues:

Overlawyered.com‘s editor wrote about class actions (as well as “champerty and maintenance”, the “invisible-fist theory”, and other topics) in Chapter 3 of his book The Litigation Explosion; an excerpt is online

Chapter 5 (“The New Town Meeting”) of Peter Huber’s book Liability: The Legal Revolution and Its Consequences contains a valuable discussion of the class action format, particularly as it applies to the so-called toxic tort; it is unfortunately not online. 

Lawrence Schonbrun, a Northern California attorney who has developed a specialty in filing challenges to excessive class action attorneys’ fee requests, wrote a prescient article in 1996 on “coupon deals”, “separately negotiated” fees from defendants, and other innovative ways the class action bar was finding to escape scrutiny of its remuneration.  (“Class Actions: The New Ethical Frontier“) 

Shareholder litigation:

A starting point for research on this topic is Stanford Law School’s comprehensive Securities Class Action Clearinghouse.  See also the commentaries on this site

In Felzen v. Andreas (1998), Judge Frank Easterbrook of the Seventh Circuit wrote that “Many thoughtful students of the subject conclude, with empirical support, that derivative actions do little to promote sound management and often hurt the firm by diverting the managers’ time from running the business while diverting the firm’s resources to the plaintiffs’ lawyers without providing a corresponding benefit.”  He cited a long list of scholarly articles including Janet Cooper Alexander, Do the Merits Matter? A Study of Settlements in Securities Class Actions, 43 Stanford L. Rev. 497 (1991), which found that the “structural characteristics common to securities class actions . . . combine to produce outcomes that are not a function of the substantive merits of the case.” and Roberta Romano, The Shareholder Suit: Litigation without Foundation?, 7 J. L. Econ. & Organization 55 (1991), which examined 39 shareholder suits filed between the late 1960s and 1987 and concluded that “shareholder litigation is a weak, if not ineffective, instrument of corporate governance.” 

In 1995 Congress passed the Private Securities Litigation Reform Act, which aimed to rectify some of the worst abuses in the field.  This client memo from Fried, Frank describes the wider powers institutional investors obtained under the act to influence litigation going on purportedly in the name of investors such as themselves. 

In Polar International Brokerage v. Reeve, a New York federal judge rejected a proposed class action settlement and request for $200,000 in attorneys’ fees, saying it offered shareholders “nothing of real value”.  (Deborah Pines, National Law Journal, May 24, 1999). 

Although the securities bar frequently alleges that well-known companies in Silicon Valley and elsewhere are run by crooked managements that fleece their shareholders, they ironically turn out to keep a lot of their (very substantial) stock holdings invested in the very same companies. (Paul Elias, San Francisco Recorder, June 8, 1999).  Among the reasons is that in many cases they have accepted stock as payment for dropping earlier legal actions. 

Other class action resources:

The Federalist Society publishes a Class Action Watch newsletter.  The first issue is in conventional web-page format. The second issue is a PDF document (Adobe Acrobat needed to view; get it here). 

Among the better-known law firms representing class action plaintiffs are Milberg Weiss Bershad Hynes & Lerach LLP, Lieff, Cabraser, Heimann & Bernstein LLP, Cohen Milstein, Hausfeld & Toll, Krause & Kalfayan, and Barrack, Rodos & Bacine

Actuary Jack Patterson has written an account for a plaintiff’s lawyer readership of class actions against life insurance companies, one of the big practice areas of the 1990s. 

The class action bar also files many antitrust suits on behalf of large groups of consumers or business purchasers.  The Antitrust Policy web site collects many worthwhile resources on antitrust law.

[probate and estate law cases]

Decorating for reconciliation“, May 29, 2003.

Pet custody as legal practice area“, Feb. 17, 2003; “Officious intermeddlers, pet division” (lawyers intervene on behalf of couple’s cats and dogs), May 14-15, 2002.

Custody and visitation, 2003:‘The Politics of Family Destruction’” (Stephen Baskerville), Jan. 7-8. 2002:Rethinking grandparent visitation“, Oct. 21; “‘Avoiding court is best defence’“, Jan. 14-15. 2001:Columnist-fest” (John Tierney), May 25-27; “Solomon’s child“, Jan. 26-28.  1999:Spreading to Australia?” (smoking and child custody), Dec. 29-30; “Chicago’s $4 million kid” (custody battle royal), Sept. 17-19.

Child support, 2003:‘The Politics of Family Destruction’” (bans on fathering more children), Jan. 7-8 (& Nov. 28, 2001). 2001:Wrong guy?  Doesn’t seem to matter“, Aug. 7-8; “‘Judge orders parents to support 50-year-old son’“, Aug. 7-8. 2000:State errors unfairly cast some dads as deadbeats“, Sept. 8-10; “Not child’s father, must pay anyway” (plus: “throwaway dads”), May 22; “Pilloried, broke, alone” (Donna LaFramboise on “deadbeat dads”), Apr. 10. 1999:Beating up on ‘deadbeat dads’“, Aug. 23.

Lawyers fret about bad image“, Oct. 3, 2002.

Hizzoner’s divorce, settled at last“, Jul. 16-17, 2002.

Lawyer’s 44-hour workday” (social service agency, uncontested adoptions), Jun. 28-30, 2002. 

Anti-circumcision suit advances“, Aug. 19, 2002; “By reader acclaim: suing over circumcision“, Feb. 28-March 1, 2001; “Folk medicine meets child abuse reporting” (“coining” of skin), May 31-Jun. 2, 2002. 

Restraining orders:‘The Politics of Family Destruction’“, Jan. 7-8, 2003; “A menace in principle“, Mar. 4, 2002; “Fateful carpool“, Aug. 23-24, 2000; “Stay away, I’ve got a court order“, Aug. 11-13; “Recommended reading” (Dan Lynch in Albany Times-Union), Jan. 25, 2000; “Hitting below the belt“, Oct. 26, 1999; “Injunctive injustice“, Oct. 14; “Weekend reading” (“Why is Daddy in jail?…For the crime of wanting to see his child”), Sept. 25-26, 1999; “Hitting below the belt” (Cathy Young, Salon). 

Mom wants to be sued” (for negligent injury to fetus), Jan. 4-6, 2002.

‘Wrongful life’ comes to France“, Dec. 11, 2001; “Meet the ‘wrongful-birth’ bar“, Aug. 22-23 (& letter to the editor, Sept. 3; more on wrongful birth/life: Jan. 9-10, May 20-21, Jul. 1-2, 2002; Nov. 22-23, Sept. 8-10, June 8, May 9, Jan. 8-9, 2000).

Women’s rights: British law, or Islamic?“, Nov. 13, 2001.

Rush to reconcile“, Sept. 27, 2001. 

Why she’s quitting law practice” (Canadian lawyer Karen Selick), Aug. 13-14, 2001. 

Canadian court: divorce settlements never final“, May 15, 2001; “Down repressed-memory lane II: distracted when she signed” (separation agreement), Dec. 29-30, 1999. 

‘Halt cohabiting or no bail, judge tells defendants’” (1805 N.C. law), May 8, 2001; “Dusting ‘em off” (old laws against “alienation of affection”, cohabitation), May 18-21, 2000. 

‘State running background checks on new parents’” (Michigan), Apr. 3-4, 2001; “Expanding definitions of child abuse“, Feb. 16-19, 2001; “Battered?  Hand over your kids“, July 13, 2000. 

‘Victim is sued for support’” (Canada: husband shot by wife may have to pay her), Feb. 9-11, 2001; “Pay us for this service” (husband dunned for cost of defending wife charged with murdering their kids), Dec. 22, 1999. 

Do as the Douglases do” (pre-nuptial agreements), Jan. 10, 2001. 

Behind the subway ads” (1-800-DIVORCE, etc.), Dec. 18-19, 2000; “State of legal ethics” (ad for will-contest litigation), Oct. 5-6; “Honey, you’ve got mail” (solicitations from divorce lawyers arrive before unsuspecting spouses know they’re being divorced), July 15, 1999. 

Family law roundup” (English couple’s divorce costs ?840,000; frequent flier miles argued over; charges of clubby Marin County, Calif. courts), Nov. 7, 2000. 

Dangerous divorce opponents” (when spouse is lawyer), Sept. 21, 2000. 

The asset hider“, May 16, 2000; “No, honey, nothing special happened today” (woman seeking divorce fails to tell husband she just won California lottery), Nov. 20-21, 1999. 

Columnist-fest: liberal aims, illiberal means” (Stuart Taylor on same-sex marriage, William Raspberry on grandparents’ rights), Feb. 24, 2000. 

Scorched-earth divorce tactics?  Pay up” (Massachusetts decisions adopt loser-pays as sanction), Jan. 31, 2000. 

Dear Abby: Please help…” (sue married man for breach of promise to follow through on divorce?), Jan. 11, 2000. 

Christmas lawyer humor” (Richard Crouch, “Joys of the season for divorce lawyers”), Dec. 23-26, 1999. 

Splitsville, N.Y.” (New York magazine cover story), Dec. 17-18, 1999. 

Weekend reading” (some celebrities tuck nondisclosure contracts into the envelope with wedding invitations), Aug. 7-8, 1999.



Articles by Overlawyered.com editor Walter Olson:

Free To Commit” (Louisiana covenant marriage law), Reason, October 1997. 

At Law: Divorce Court New York Style“, City Journal, Spring 1993. 

Kidlib and Mrs. Clinton: The Hand that Rocks the Cradle” (children’s rights), National Review, May 11, 1992. 

Suing Ourselves to Death“, (vagueness of custody standards; excerpt, The Litigation Explosion), Washington Post, April 28, 1991.


Countless websites deal with divorce, custody and other family-law topics. A great many of these are put up by persons outraged at what they’ve gone through in their own experiences in court.  Among sites with a reformist focus, many align themselves with one or another camp among family roles: thus there are sites that focus on husbands’ legal woes and those that focus on wives’; sites for custodial and for non-custodial parents, for birth parents, for adoptive parents and for adoptees; and so forth.  Yet dissatisfaction with the legal system’s handling of family breakup, and outrage at exorbitant costs, tactical gamesmanship, judges with too much arbitrary power, unreliable expert opinion, and outright perjury and invention, are themes that weave through sites from all sides.  Indeed, one lesson from comparing a variety of sites is that innocent parties of every sex, age and condition are victimized by legal hardball — and that the process produces many more losers than winners. 

Books of interest:

Karen Winner, “Divorced from Justice : The Abuse of Women and Children by Divorce Lawyers and Judges
Cathy Young, “Ceasefire! Why Women and Men Must Join Forces to Achieve True Equality“. 
Richard Ofshe and Ethan Watters, “Making Monsters: False Memories, Psychotherapy, and Sexual Hysteria“ 
Margaret Hagen, “Whores of the Court: The Fraud of Psychiatric Testimony and the Rape of American Justice” (currently unavailable)

Bar discipline and client protection, 2003: Probate’s misplaced trust” (Washington Post series), Jun. 16-17. 2002:Crumbs from the table“, Feb. 8-10.  2001:Law firm sued over fen-phen settlement practices“, Dec. 28; “Updates” (IOLTA), Dec. 15-16 (& Jan. 31); “Holiday special” (Canadian lawyer’s misconduct), May 28; “Mills of legal discipline” (updates on Brock, Hager, Fieger cases), Mar. 3; “Dangers of complaining about lawyers” (Ga. considers easing defamation counter-complaints by lawyers), Mar. 30-Apr. 1.  2000:‘Judge Lenient With Perjurer, Cites Clinton Case’“, Oct. 16-17 (& May 16); “Disbarred, with an asterisk” (Mass. has let many attorneys resume practice), Sept. 20; “Funds that don’t protect” (client protection funds), Aug. 23-24; “Fit to practice?” (California bar disciplinary board), Aug. 21-22; “That Hager case” (American U. law professor Mark Hager, settlement of Warner-Lambert Nix lice treatment case), Feb. 23 (& update May 3, 2001: board recommends three-year suspension). 

New legal ethics weblog” (ethicalEsq.?), Jun. 6-8, 2003.

Judicial conduct, 2003:Year’s most injudicious judges“  (NLJ roundup), May 6. 2002:‘Federal authorities say judge offered illegal payoff’“, Sept. 3-4; “‘Privileged chambers’” (Albany Times-Union series), May 30; “‘Injudicious conduct’” (NLJ roundup), May 1-2; “La. officials seek oyster judge recusal“, Mar. 25-26; “So depressed he stole $300K“, Mar. 19.  2001:‘Pseudologica fantastica’ won’t fly” (judge’s resum?ibs), June 7 (& update Aug. 20-21); “‘Judges behaving badly’” (NLJ roundup), May 11-13.  2000:Year’s most injudicious judges“, Jun. 5, 2000; “Brockovich story, cont’d: the judges’ cruise“, Apr. 18; “New Hampshire high court blowup“, Apr. 5 (& updates Oct. 11: chief justice acquitted at impeachment; May 3, 2001); “The costs of disclosure” (Washington state, Grant Anderson case), Jan. 19. 

Class action lawyer takes $20 million from defendant’s side“, Mar. 15-16, 2003.

Politico’s law associate suspended over ‘runner’ use” (Louisiana), Feb. 14-16, 2003.

Civility:Law’s attraction for the bully“, Dec. 13-15, 2002; “‘Attorney Ordered To Pay Fees for “Rambo” Tactics’“, Oct. 5-7, 2001; “Mills of legal discipline” (Geoffrey Fieger tirade against judges), May 3, 2001 (& more on Fieger: Apr. 23-24, 2002, Sept. 14, 1999; “Another Mr. Civility nominee” (“dreck”, “scum”), June 2-4, 2000; “From the incivility frontier” (“gag a maggot off a meat wagon”, “proctology exam”), April 19; “Majesty of the law” (alleged threat to kill opposing counsel), March 13, 2000 (& update May 17: attorney sanctioned); “Bright future in some areas of practice” (“abusive, hostile” applicant for law license), Oct. 13, 1999 (update, Nov. 23). 

Race-bias cases gone wrong“, Jan. 24-26, 2003.

Lawyers fret about bad image” (Fla. bar plans to rate and monitor tone of journalists’ coverage), Oct. 3, 2002. 

FTC cracks down on excessive legal fees“, Oct. 1-2, 2002. 

Second Circuit: we mean business about stopping frivolous securities suits” (scope of Rule 11), Aug. 29-Sept. 2, 2002. 

Lawyer’s 44-hour workday“, Jun. 28-30, 2002; “Charged $16,000 for brief he copied from book“, May 17-19, 2002; “Lending rules trip up litigation-finance firms“, Dec. 3, 2001; Letter to the editor (incremental billing disclosed?), Oct. 22, 2001; “Law-firm bill-padding?  Say it isn’t so!“, Nov. 18, 1999. 

‘Student gets diploma after threatening lawsuit’“, Jun. 13, 2002.

Truth value, 2002:Lying’s not nice, especially when representing the bar“, Jul. 30-31; “Columbia Law School survey on public attitude toward lawyers“, Apr. 26-28; “‘Ex-student sentenced for rape lie’” (wants to become attorney), Jan. 11-13 (& see May 26-29, 2000: Stephen Glass graduates Georgetown Law).  2001: Criminal defense attorneys, doing what they do best“, Dec. 15-16; “‘Lawyers pay price for cruel hoaxes’” (phony heir claims after plane crashes), Aug. 3-5; “‘Lie-tery winners’“, April 20-22.  2000:What was the Florida court thinking?” (Boies-submitted affidavit), Dec. 11-12; “‘Judge Lenient With Perjurer, Cites Clinton Case’“, Oct. 16-17 (& May 16); “The judge wasn’t asleep” (sanctions for submission of dubious affidavits), June 14-15.  1999:If true, then all the better” (excerpt from Campos, Jurismania), Dec. 3-5; and see witness coaching, below. 

‘”Little” done for firm, Rendell says’” (law firms provide no-show jobs for politicians), May 9, 2002. 

‘Former clients sue attorney O’Quinn’” (Kennedy Heights case), Apr. 8-9, 2002 (& Aug. 4, 1999).

Gary & Co. shenanigans at Maris trial“, Apr. 1-2, 2002. 

Lawyers stage sham trial aimed at inculpating third party“, Mar. 22-24, 2002. 

Disclosure:Lending rules trip up litigation-finance firms“, Dec. 3, 2001; Letter to the editor (incremental billing disclosed?), Oct. 22, 2001; “Trial lawyers knew of tire failures, didn’t inform safety regulators“, June 25 (& June 28)(& letter to the editor, July 6); Letter to the editor (ghostwriting), June 13; “ABA’s toothless ethics proposals“, Jan. 17, 2001; “Contingency fee reform“, Nov. 1, 2000. 

Contingent fees, 2001:Lending rules trip up litigation-finance firms“, Dec. 3; “Red-light cameras“, Sept. 6, 2001; “‘The Louima millions’“, July 24; “The rest of Justice O’Connor’s speech“, July 6-8; “Evils of contingent-fee tax collection, cont’d“, May 30; “Reclaiming the tobacco loot“, March 15; “Hugh Rodham’s ‘success fee’“, Feb. 23-25; “Dangers of tax farming“, Jan. 10 (& letter to the editor, Jan. 16).  2000:Contingency fee reform“, Nov. 1; “‘Lawyer take all’” (equity stakes in clients), Oct. 27-29.  1999:Piece of the action” (contingent fees for public officials), Dec. 3-5; “Reform stirrings on public contingency fees“, Oct. 15.

Witness coaching, 2001:GAF sues asbestos lawyers“, Feb. 12-13, 2001 (& see Dec. 10).  2000:‘N.Y. lawyer charged in immigrant smuggling’“, Sept. 22-24; “Sunday’s Times on Fred Baron“, June 5 (& see “Thanks for the memories” by Walter Olson, Reason, June 1998 and subsequent letters exchange with William Hodes).  1999:State of legal ethics” (hey, what’s wrong with witness coaching?), Sept. 9. 

‘The Great Mouthpiece’” (Manhattan’s Bill Fallon, 1920s), Dec. 28, 2001. 

‘Halliburton shares plunge on verdict’” (law-firm whistleblowing), Dec. 10, 2001. 

’2d Circuit Upholds Sanctions Against Firms for Frivolous Securities Claims’“, July 23, 2001 (more on sanctions: Jul. 30-31, 2002). 

Estate law temptations“, July 6-8, 2001; “Lawyers charged with $4.7 million theft from clients“, April 10, 2000; “Lawyers stealing less, clients say“, Dec. 21, 1999. 

Lost his live client, had to substitute dead one instead“, April 11, 2001; “Turn of the screw” (lawyers alleged to have sued without client consent), Oct. 24, 2000; “Curious feature of lawyer’s retainer” (allowed him to settle case without client consent), Sept. 12, 2000. 

‘It’s time to disarm the hired guns’” (Arianna Huffington), Feb. 28-March 1, 2001; “Trustworthy professionals” (survey of public confidence), Dec. 11-12, 2000. 

Fed prosecutors chafe at state ethics rules“, Oct. 16-17, 2000. 

Lenzner: ‘I think what we do is practice law’” (private investigator in Oracle scandal), July 28-30, 2000. 

Access to something” (lawyer accused of working for Social Security Administration while helping clients sue it), July 13, 2000. 

Ready to handle your legal needs” (Stephen Glass graduates Georgetown Law), May 26-29, 2000. 

Steering the evidence” (DaimlerChrysler gets sanctions against lawyers for evidence and witness tampering), May 23, 2000 (& update June 26). 

‘Ad deal links Coke, lawyer in suit’” (Willie Gary, suing Coca-Cola on behalf of clients, enters into a lucrative ad deal with it), May 11, 2000. 

Splash of reality” (sanctions for frivolous litigation in case of claimed Jackson Pollock painting), May 4, 2000. 

Brockovich story, cont’d: the judges’ cruise“, April 18, 2000; “Brockovich story breaks wide open“, April 17, 2000 (& see Dec. 21). 

Majesty of the law” (Phila. attorney Marvin Barish could face sanctions for allegedly threatening to kill opposing counsel during trial break), March 13, 2000; “Relax, you’re being taken care of” (Barish advances injury client’s rent and expenses), Dec. 14, 1999. 

Legal ethics meet medical ethics” (lawyers advise schizophrenic murder defendant to go off his medication for trial), Feb. 26-27, 2000. 

Secrets of class action defense” (assisting cooperative opponent to draft complaint), Feb. 25, 2000. 

Watchdogs could use watching” (fee-splitting in Florida securities cases), Jan. 20, 2000. 

The costs of disclosure” (lawyer reveals misconduct by client, judge), Jan. 19, 2000; “Pack your toothbrush, son” (Ala. law-firm whistleblower), Dec. 20, 1999. 

Popular CLE course: ‘How to Hammer Allstate’” (insurer charged with unauthorized practice of law), Dec. 22, 1999 (update, April 18, 2000). 

Splitsville, N.Y.” (New York mag on divorce), Dec. 17-19, 1999. 

Victory in Florida” (plaintiffs deliberately run up gunmakers’ costs for leverage), Dec. 14, 1999. 

Weekend reading: evergreens” (St. Petersburg Times Pulitzer series on probate law), Dec. 3-5, 1999; “From the evergreen file: L.A. probate horror” (estate of art collector Fred Weisman), Nov. 20-21; “Weekend reading: evergreens” (Denver probate nightmare), Oct. 23-24, 1999. 

Class action fee control: it’s not just a good idea, it’s the law“, Nov. 30, 1999; “Class action coupon-clippers“, Nov. 15; “$49 million legal fee okayed in case where clients got nothing“, Sept. 28, 1999. 

Accommodating theft“, Nov. 11, 1999. 

Who loves trusts-and-estates lawyers?“, Nov. 8, 1999. 

Criticizing lawyers proves hazardous“, Nov. 4, 1999 (update, Nov. 30); “No spotlight on me, thanks” (Houston’s John O’Quinn), Aug. 4, 1999. 

State of legal ethics” (lawyers take out glossy ad to stir up will-contest litigation), Oct. 5-6, 1999. 

Weekend reading: evergreens” (lawyer-abetted accident fraud), Sept. 25-26, 1999; “Wages of wrongdoing” (Staten Island lawyers convicted), Sept. 8, 1999. 

Join our new Verdict Rewards program” (checks for jurors), Sept. 13, 1999 (updates, Sept. 17-19, 1999 and Aug. 4-7, 2000). 

Cook County law bills a secret“, Sept. 11-12, 1999. 

My lawyer is an impostor“, Sept. 3, 1999. 

ABA thinks it can discourage ‘pay-for-play’“, Aug. 11, 1999 (& Aug. 14-15 update). 

Like calling the Orkin man to talk about bugs” (ABA convention), Aug. 10, 1999; “Weekend reading” (ABA choice of speakers), Aug. 28-29, 1999. 

No need for speed“, Aug. 3, 1999. 

Weekend reading” (at execution sale, law firm buys up client’s right to sue it for malpractice), July 31-Aug. 1, 1999. 

Honey, you’ve got mail” (solicitations from divorce lawyers arrive before unsuspecting spouses know they’re being divorced), July 15, 1999.


Articles by Overlawyered.com editor Walter Olson:

Thanks for the memories” (coaching of witnesses), June 1998 (& subsequent letters exchange with William Hodes) 

Tobacco Analysts Meet the Plaintiff’s Lawyers” (abuse of pretrial discovery), Wall Street Journal, August 30, 1995. 

Juries on Trial“, review of The Jury by Stephen J. Adler and We the Jury by Jeffrey Abramson, Reason, February 1995. 

Sue City: The Case Against the Contingency Fee“, excerpt from The Litigation Explosion, Policy Review, Winter 1991 [in two parts] [part one] [part two

Dentists, Bartenders, and Lawyer Unpopularity“, Manhattan Institute Civil Justice Memo #37, April 1999. 

Lawyers with Stethoscopes: Clients Beware“, Manhattan Institute Civil Justice Memo #26, June 1996. 

Taming the Litigators: Why Not More Disclosure?“, Manhattan Institute Civil Justice Memo #24, February 1996.


Codes of ethics:

ABA Center for Professional Responsibility
Overview — Rules of Lawyer Conduct
U.S. Judges Code of Conduct
California Rules of Professional Conduct
D.C. Rules of Professional Conduct

Some online articles of interest:

James McCauley, “The Ethics of Making Legal Services Affordable…” (Virginia bar; discusses unauthorized practice, pro se litigation) 

Rep. Chris Cox, Testimony on tobacco settlement (1997)

Lawrence Schonbrun, “Class Actions: The New Ethical Frontier” (Manhattan Institute, 1996)