The Litigation Explosion

October 30-31 – Bad tee times figure in $2 million award. A Boston jury of seven men and seven women has awarded nearly $2 million to nine female golfers who said the Haverhill Country Club had discriminated against them by depriving them of desirable tee times and other club benefits. They also contended that the club had allowed only a few women to move up to a more exclusive, and expensive, premium membership. (“Women awarded almost $2 million in Boston club discrimination case”, AP/Court TV, Oct. 28) (& update June 7, 2000)

October 30-31 – Sue as a hobby. Sad portrait from Chicopee, Mass. of that familiar figure in many American courtrooms, the perennial pro se litigant. This one’s been at it for 21 years, suing over union and town issues, utility bills and medical insurance, devoting about 20 hours a week to the truculent pastime. Some snicker, but “the tortured souls on the other end of Brown’s lawsuits take him very, very seriously — or risk a legal thumping.” One neighbor, a former mayor, stops to chat: “I think we got a good relationship, considering he’s sued me numerous times.” (Jeff Donn, “An American Portrait: Amateur lawyer hooked on suing habit”, AP/Fox News, Oct. 25)

October 30-31 – Annals of zero tolerance: cannon shots banned. Officials at Nevis High School in west-central Minnesota, citing a zero-tolerance policy, have refused to permit the school yearbook to publish a picture showing senior Samantha Jones perched on a cannon. The school’s policy bans not only weapons themselves from school grounds — including squirt guns — but even depictions of weapons, in the interpretation of school board members. “We don’t recognize weapons to be of any importance to the functions of the district,” said superintendent Dick Magaard. “Whether it’s in military, recreational or sporting form, anything shaped like a gun or knife is banned.” Ms. Jones is planning to enter the army on graduation, and the photo shows her sitting on a howitzer outside a nearby Veterans of Foreign Wars post. (“Senior upset that school won’t allow her yearbook photograph”, Minneapolis Star-Tribune, Oct. 29, link now dead) (update Nov. 26-28: school relents on policy, provided cannon is draped by U.S. flag)

October 30-31 – Those naughty Cook County judges. Another one is in trouble, this time over allegations of “handling cases involving a friend and a relative, forging a former law associate’s name on his tax returns and violating disclosure laws.” (Charles Nicodemus, “Judge faces misconduct charges”, Chicago Sun-Times, Oct. 27 — link now dead).

October 30-31 – Abuses of restraining orders. Interesting discussion has developed on Overlawyered.com‘s discussion forums since author Cathy Young joined to discuss her new Salon article on how restraining orders in domestic relations cases can become a tactical weapon.

October 29 – 52 green-card pickup. The Equal Employment Opportunity Commission has just announced that it will start pursuing discrimination claims for back pay on behalf of illegal alien workers who had no lawful right to take or hold the jobs in the first place (see yesterday’s commentary) That turns out to be only one of the legal headaches for employers considering noncitizen job applicants. As the newsletter of the National Legal Center for the Public Interest points out, managers also are in big trouble if they insist on particular methods of documenting job eligibility. “A Boston restaurant paid a $5,000 penalty for insisting that a job applicant provide a green card when it should have accepted his passport, which had an Immigration and Naturalization Service (INS) stamp, as proof of eligibility. A meatpacking company paid $8,500 for insisting that an applicant get INS documentation that his alien registration card was legitimate. It is illegal to insist on any particular form of documentation or to reject documents that appear to be genuine, says DOJ [the U.S. Department of Justice].” (NLCPI July 1999 newsletter, about 4/5 of way down page)

And more recently: “The Office of Special Counsel (OSC) of the Civil Rights Division of DOJ continues its offensive against ‘immigration discrimination,’ assessing a Maryland food processor $380,000.” It seems the company had been asking noncitizens to show INS documents when it “should have been content with any acceptable documents. The company’s view: Since most applicants already had their INS ID in hand (to fill out the mandatory INS I-9 form), hirers might say, ‘Let me see your Green Card,’ but would readily accept other documents if no Green Card were available. OSC calls this ‘document abuse,’ and fined the company for ‘discriminating’ against people that it actually hired.” (NLCPI Sept. 1999 newsletter, about 2/3 of way down page). Moral: be careful you don’t hire illegals, but don’t be too careful.

October 29 – Urge to mangle. Sometimes you’re better off disregarding the “care labels” on garments you buy that prescribe pricey dry cleaning or tedious hand washing, according to Cheryl Mendelson’s newly published encyclopedia of housekeeping, Home Comforts. For example, observes a reviewer, “a blouse labeled ‘dry clean’ might be equally tolerant of the washing machine”, while lingerie may survive perfectly well even if you don’t set aside an evening to “handwash separately, dry flat, do not wring or squeeze.” Why are labels so overcautious? They’re put on by “manufacturers whose primary goal is to avoid lawsuits”. (Cynthia Crossen, “The Dirt on Domesticity”, Weekend section book review, Wall Street Journal, Oct. 15, requires online subscription.)

October 29 – Founders’ view of encryption. To hear some officials tell it, only drug lords and terrorists should object to the government’s efforts to control encryption. Yet historians say James Madison, Thomas Jefferson and James Monroe all wrote letters to each other “in code – that is, they encrypted their letters — in order to preserve the privacy of their political discussion….What would Thomas Jefferson have said about [the current encryption controversy]? I suspect he would have said it in code.” (Wendy McElroy, “Thomas Jefferson: Crypto Rebel?”, The American Partisan, Oct. 23).

October 28 – EEOC okays discrimination claims for illegal aliens. Back pay! Punitive damages! And — if amnesty and a green card can be obtained in the mean time — even reinstatement! In a “major policy turnaround”, the Equal Employment Opportunity Commission throws its full backing behind damage claims for lost pay by workers who knew quite well they had no legal right to take a job in the first place. The agency promises that it “will not inform other government agencies if an immigrant is here illegally” — thus turning its role from that of a law enforcement agency to one committed to foiling law enforcement when that helps generate a caseload. Remarkably, a public statement by Immigration and Naturalization Service spokesman Don Mueller says the agency is “going to support” the new policy of keeping it in the dark about violations of the laws it’s supposed to enforce. Why? Because its role as scourge of employers is more important. “Our public enemy are the smugglers and employers who exploit these people.”

Rep. Lamar Smith (R-Texas), who chairs the House Judiciary Committee’s subcommittee on immigration, called the new policy “absurd”: “These rules would, for example, require employers to hire back individuals who had been fired when it is illegal to have hired them in the first place.” “To me it should be a nonstarter because an illegal alien by definition is in the country unlawfully,” said attorney John Findley of the conservative Pacific Legal Foundation. “That individual has no right to the job in question. To force an employer to rehire an individual with back pay and subject the employers to sanctions seems to me ridiculous.” An editorial in yesterday’s Chicago Tribune says that if the agency “was looking for a way to make itself seem ridiculous — even pernicious — it could hardly have found a better one….[EEOC chairwoman Ida Castro] has all but invited Congress to step up and clip the wings of an arrogant, overreaching government agency”.

Rep. Smith and some others predicted that the new rules would encourage illegal immigration, but the more accurate view would seem to be that of the AFL-CIO, which lobbied tirelessly for the new rules based on the expectation that giving this group more lawsuit-filing rights will discourage, not promote, its hiring. (A prominent element in the labor group’s tender concern for undocumented workers has been the desire to make sure they don’t get hired in the first place.) Backers of expansive employment law have often been reluctant to admit that giving a group of workers wider rights to sue — disabled or older workers, for example — can discourage employers from hiring that group. Update Apr. 3-4, 2002: Supreme Court rules that back pay for illegal is in violation of immigration law.

Sources: Stephen Franklin, “EEOC Seeks To Protect Undocumented”, Chicago Tribune, Oct. 26; Andrew Buchanan, “EEOC Helps Undocumented Workers”, AP/Washington Post, Oct. 27; “This EEOC Policy Goes Out of Bounds”, editorial, Chicago Tribune, Oct. 27; Steven Greenhouse, “U.S. to Expand Labor Rights to Cover Illegal Immigrants”, New York Times, Oct. 28.

October 28 – We’re outta here. The weekend was fast approaching, and after a long Friday of deliberations some of the jurors really wanted to finish the case, a negligence suit against a hospital, so as not to have to come back Monday. How badly did they want that? Badly enough to switch their votes to the defense side, according to the plaintiff’s lawyer who wound up losing, and one of the jurors backs up his complaint. (Jeff Blumenthal, “Did Civic Duty Go Awry?”, The Legal Intelligencer (Philadelphia), Sept. 15)

October 28 – Lost in translation. Lawsuit by entertainment guide WhatsHappenin.com against Hispanic portal QuePasa.com, on grounds that latter’s name roughly coincides with Spanish translation of the former, greeted disrespectfully by Suck.com (“Frivolous lawsuits don’t come much more frivolous…we think there is a possibility, however remote, that que pasa might just be a familiar and usable phrase in the Spanish language.” (“Hit and Run”, Oct. 14 — also see Wired News, Oct. 18).

October 28 – Virtual discussion continues. On Overlawyered.com‘s discussion forums, conversation continues with author Cathy Young about her Salon article on abuses of restraining orders in domestic relations cases (see yesterday’s announcement).

October 28 – Welcome National Post (Canada) readers and About.com Legal News readers. For our reports on Pokémon-card class actions, click here (Oct. 13) and here (Oct. 1-3). For our report on Houston litigation over “blast-faxing”, click here (Oct. 22)

October 27 – “Virtual interview guest” at Overlawyered.com discussion forums: author Cathy Young. As we mentioned yesterday, the Detroit News columnist and author of Ceasefire!: Why Women and Men Must Join Forces to Achieve True Equality has a provocative article in the new Salon about the ways restraining orders in domestic disputes can sometimes trample the rights of their targets. Several participants in our recently launched discussion forums expressed interest in the issue, and the author herself has now agreed to drop by the forums, beginning this afternoon, to field comments, reactions and questions and generally get a conversation going. Remember that it’s not live chat, so comments may not get an immediate response. The main discussion will be in the Divorce Law forum, but there may be spillover to other topics such as Harassment Law. Everyone can read what gets posted, but if you want to join in with your own reactions you’ll need to register, an easy step to take. [forums now closed]

October 27 – “This is all about power”. The Albany Times-Union furnishes more details about the little-publicized legal action (see Oct. 5-6 commentary) in which Indian tribes have sued to dispossess tens of thousands of private landowners in upstate New York; it seems that generations ago the state purchased reservation lands without obtaining federal approval as required by law, and the U. S. Supreme Court ruled in 1985 that proper title therefore never passed. The value of the innocent owners’ homes and farms has of course plunged drastically, and tribal spokesmen want the state government to step in with an offer on their behalf. “You have to get the state to get serious about negotiation”, explains Oneida leader Ray Halbritter. “The pain of not settling has to be greater than the pain of settling….This is all about power.” Very wealthy from its tax-free casino operations, the Oneida tribe donates abundantly to politicians, many of whom tread gingerly around its interests. To the fury of the local landowners, the U.S. Department of Justice has joined the Indians and is assisting their legal claim. (James M. Odato, “Tribe plays high-stakes game with landowners”, Oct. 25; plus sidebars on Mr. Halbritter and orchard owner/protest leader Tony Burnett; via Empire Page.) (see also Feb. 1 commentary).

October 27 – Why doesn’t Windows cost more? During the trial “the government’s economic expert got up on the stand and said that if Microsoft was charging all the market would bear, it would be charging about three or four times what it does today for an operating system. That’s kind of curious.” Why would Bill Gates leave that much money on the table? ‘Cause he’s a charitable kind of guy? No, the fact “probably suggests that Microsoft is facing a form of competition that keeps its prices low. And, in fact…what the evidence proved is that that competition comes in the form of platform competition — the desire to be the next generation of technology in an area where technology turns over in a matter of months, not a matter of years. And that competition … keeps prices down, keeps Microsoft on its toes, keeps innovation going.” — former Assistant Attorney General for Antitrust Charles Rule, now of Covington & Burling, speaking at “What Are We Learning from the Microsoft Case?”, a Federalist Society conference held in Washington Sept. 30 (full transcript)

October 27 – Zone of blame. Two years ago a former mental patient slew New Jersey state trooper Scott Gonzalez, first ramming his cruiser head-on, then killing him with two shotgun blasts through the car’s windshield. So who’s his widow suing? The killer’s parents; the makers of her husband’s police gun, because it briefly jammed after he’d fired seven shots from it; and the Ford Motor Co., because the deployment of its airbags on collision allegedly delayed his exit from the car. (Eric D. Lawrence, “Widow’s suit blames auto, gun makers for cop’s death”, Easton, Pa. Express-Times/Lehigh Valley Live, Oct. 26 — full story). Update Jan. 3, 2004: jury finds for Ford.

October 27 – Welcome Progressive Review readers. Looking for the cow items mentioned there? Click here (foam-rubber cow recall) and here (Canadian brouhaha over insensitive cow-naming).

October 26 – Rhode Island A.G.: let’s do latex gloves next. Rhode Island Attorney General Sheldon Whitehouse just made headlines by enlisting his state as the first to sue lead paint and pigment makers in partnership with trial lawyers. But that’s not all he’s been up to, according to a report in Business Insurance: “In an August letter to another attorney general, Rhode Island’s Whitehouse proposed ‘going after’ the latex rubber industry over health problems possibly caused by latex allergies, a copy of the letter shows. The states could seek ‘a couple of billion dollars’ to fund latex allergy education and research programs, Mr. Whitehouse suggested.” (more about latex allergies)

With tobacco fees beginning to flow, the article also reports renewed interest in an old trial lawyer project that now may attract co-sponsorship from state or city officials: getting courts to hold automakers liable for not installing “speed governors” on passenger cars that would cut off added acceleration if the driver tried to take the vehicle above a certain set miles-per-hour. If courts accept such a theory, Detroit could potentially be on the financial hook for most or all high-speed crashes that take place in cars now on the road. (Douglas McLeod, “Suits by public entities expected to increase,” Business Insurance, Oct. 18)

October 26 – Dave Barry on federal tobacco suit. “As a result of [companies'] clever deception, the Justice Department contends, smokers did not realize that cigarettes were hazardous. This is undoubtedly true of a certain type of smoker; namely, the type of smoker whose brain has been removed with a melon scoop. Everybody else has known for decades that cigarettes are unhealthy….

“Cigarette companies are already selling cigarettes like crazy to pay for the $206 billion anti-tobacco settlement won by the states, which are distributing the money as follows: (1) legal fees; (2) money for attorneys; (3) a whole bunch of new programs that have absolutely nothing to do with helping smokers stop smoking; and (4) payments to law firms. Of course, not all the anti-tobacco settlement is being spent this way. A lot of it also goes to lawyers…” (Dave Barry, “Few — Hack! — Thought Their Habit Safe,” Spokane Spokesman-Review, Oct. 24. Plus: novelist Tom Clancy’s critical take on the feds’ tobacco suit (“Curing the Smoking Habit”, Baltimore Sun, Oct. 17, reprinted from Los Angeles Times).

October 26 – “Hitting below the belt”. Readers of this website were alerted twelve days ago to Cathy Young’s powerful Detroit News critique of abuses of restraining orders in divorce and custody cases. Now the author of Ceasefire appears in the October 25 Salon with a much-expanded version, including more on the Harry Stewart case (he’s serving a six-month sentence for violating a restraining order by seeing his son to the front door instead of waiting in the car), new detail on traps (conduct violative of an order “includes contact that is clearly accidental, or even initiated by the purported victim: Even if you came over to the house at your ex-spouse’s invitation, you don’t have a legal excuse”) and on tactics (“There are stories of attorneys explicitly offering to have restraining orders dropped in exchange for financial concessions”).

One startling quote comes from a New Jersey judge addressing his peers at a 1995 conference: “Your job is not to become concerned about the constitutional rights of the man that you’re violating as you grant a restraining order,” said the Hon. Richard Russell. “Throw him out on the street, give him the clothes on his back and tell him, see ya around …The woman needs this protection because the statute granted her that protection … They have declared domestic violence to be an evil in our society. So we don’t have to worry about the rights.” But a growing number in the field are worried about the rights, and don’t think protecting the rights of potential abuse victims should have to mean sacrificing those of the accused. “I don’t think there’s a lawyer in domestic relations in this state who doesn’t feel there has been abuse of restraining orders,” says Needham, Mass. attorney Sheara Friend. “It’s not politically correct — lawyers don’t want to be pegged as being anti-abused women, but privately they agree.” (full story)

October 26 – “The Reign of the Tort Kings”. Trial lawyers now wield political clout “unthinkable” four years ago, and have nearly doubled their contributions to federal candidates over that period, report Marianne Lavalle and Angie Cannon in a big spread on the emergent Fourth Branch in the new U.S. News & World Report (Nov. 1)

October 25 – Gun litigation: a helpful in-law. Time magazine, in its issue out today, reports that Hugh Rodham, brother of Hillary Rodham Clinton and brother-in-law of President Clinton, has now popped up to assist lawyers suing the gun industry in brokering a settlement. Earlier, lawyers suing the tobacco industry cut in Rodham — despite his glaring lack of experience in mass-tort litigation — as a participant in their activities; he proceeded to use the occasion of a Thanksgiving dinner at the White House to approach his sister’s husband directly, which helped lead to the settlement that’s shaken loose billions in fees for those lawyers. Rodham told Time, “It was totally unforeseen, when we joined…that there would be any connection with politics.” (full story)

October 25 – From the Spin-to-English Guide, a service of Chris Chichester’s Empire Page. Phrase: “It’s important to preserve and enhance access to justice.” Translation: “We’ve come up with a great way to allow the trial lawyers to file more lawsuits, win more big settlements, and give us more campaign contributions.” Among others in the series — Phrase: “The only poll that counts is the one on Election Day. Translation: We’re a bunch of losers headed for a trouncing on Election Day.” And — Phrase: “We’re not going to dignify that with a comment. Translation: We really got slammed and can’t think of a response.” (page now removed) The Empire Page, started last year by former legislative and gubernatorial staffer Christopher Chichester, has quickly become the one-stop Web jumping-off point for news of New York politics and government; it’s alerted us to several items used on this page (item no longer online).

October 25 – Better than reading a lunchtime novel. Sylvia Johnson was fired from her job with the IRS after it was discovered she’d improperly accessed taxpayers’ personal returns some 476 times. Now she’s suing the U.S. Treasury to get her job back and for punitive as well as compensatory damages. A Merit Systems Protection Board administrative judge previously rejected her discrimination and due process claims, saying that while other employees caught peeking in files had been given a second chance, the agency regarded her misuse of the system as far more extensive. (Gretchen Schuldt, “Ex-IRS employee sues to regain job”, Milwaukee Journal Sentinel, Oct. 14 — full story)

October 25 – Guest column in Forbes by Overlawyered.com‘s editor. The column blasts the Clinton Justice Department’s recent suit against tobacco companies (see Sept. 23 commentary), in particular the suit’s premise that it was legally wrongful for the companies to send out press releases and commission research in an effort to defend their position. “If partisan science is racketeering, whole echelons of the Environmental Protection Agency should be behind bars. But the novel legal doctrines being advanced in the suit can’t — and won’t — be applied evenhandedly.” (“Reno’s Racket”, Forbes, Nov. 1 — full column).

Plus: op-ed in today’s Wall Street Journal by Jonathan Rauch, adapted from his earlier National Journal column, assesses the suit’s threat to free speech by business and quotes this site’s editor (requires online subscription).

October 23-24 – Inmates’ suit cites old videos. A federal judge considers a suit by inmates complaining of inhumane conditions in Philadelphia’s antiquated House of Corrections. The report makes it sound difficult for the inmates’ lawyer to elevate their gripes to the level of a Constitutional violation, however: “Very few toilets have seats, and the video movies they get are outdated, the inmates told the judge.” (Jim Smith, “Inmates: Prison chow’s bad, videos are old”, Philadelphia Daily News, Oct.

October 23-24 – Zero tolerance strikes again. “Student suspended after cutting cake with pocket knife”, reads the headline over this AP story datelined Monroe, N.C., where a 14-year-old boy in the Union County schools was given a five-day suspension. “When a student is in possession of a knife, it’s a clear-cut violation,” said assistant principal David Clarke. “We can’t have weapons in our schools”. The incident occurred at the end of a school day when a teacher shared a leftover cake with students and needed something to cut it with. (Raleigh News & Observer, Oct. 22; “Cake-Cutting Ends in Suspension”, Excite/Reuters, Oct. 22)

October 23-24 – Weekend reading: evergreens. Pixels to catch up with on the raft or schooner, if you missed them the first time around:

* Prescient (3 1/2 years ago) op-ed by Bruce Kobayashi, of George Mason University Law School, argues that holding gunmakers liable for shootings “would create new injustices…ensnare the morally innocent and erode the crucial distinction between responsible and irresponsible behavior.” Besides, why “place the financial burden on law-abiding firearms owners who have not misused firearms? If the litigation explosion has taught us anything, it is that using the tort system to provide social insurance entails large (and largely hidden) premiums — usually in the form of less output and less justice.” (Orange County Register, April 21, 1996, reprinted by Independent Institute — full column)

* Melrose Place (1997, 5th season) plot lines revolving around staged-accident fraud — you may have to know the characters for the synopses to make sense (Ken Hart: 3/10/97, 3/17, 3/31, 4/7, 4/14, 4/21, 4/28, 5/5/97; EPGuides/Pam Mitchelmore: 3/17/97, 3/31, 4/7, 4/14, 4/28, 5/5/97; Peter Goldmacher: 3/10/97, 3/17, 4/7, 4/14, 4/21/97)

* Denver probate-court nightmare: tangle of guardianship proceedings leaves 83-year-old Letty Milstein “virtually a prisoner in her own home” as she struggles against efforts to have her declared incompetent. By the time an appeals court steps in, court-appointed lawyers, health-care personnel and others have consumed most of her $650,000 estate. One lawyer, Michael Dice, later pleaded guilty to stealing money from numerous clients. Alternative weekly Westword covered the story tenaciously (Steve Jackson, “Mommy Dearest”, May 22, 1997; Steve Jackson, “Letty Wins”, Feb. 12, 1998; other coverage, all links now dead).

October 22 – In Houston, expensive menus. “Junk” (unsolicited) faxes are a widely loathed medium of advertising, tying up a target’s machine and using his own paper to do it. In 1995 some Houston lawyers filed suit against more than seventy local defendants which they said had patronized blast-fax ad services despite a 1991 federal ban. Though filing in state court, they sought to invoke a penalty specified in federal law of $500 for each unwanted fax sent, and triple that if the offense was willful. They also asked for certification as a class action, entitled (they said) to recover the $500 or $1500 figure for every fax sent on behalf of any defendant during the period in question — a sum estimated at $7 billion.

The list of named defendants is heavy on restaurants (many of them presumably sending menus or coupons) but also includes car dealers and some national businesses like GTE Mobile and Pearle Vision Centers. Defendants’ lawyers variously argue that no laws were broken, that their clients should not be held liable for the sins of ad agencies, that ad sponsors had been assured that all recipients had opted in to a tell-me-about-discount-offers arrangement, and that there is no evidence that the named plaintiffs received faxes from their clients or complained at the time; plaintiffs, however, point to records from the agencies as providing a paper trail of how many were sent on whose behalf. Thus a local Mexican restaurant which advertised in more than 50,000 faxes is potentially on the hook for $25 million dollars and change — three times that if deliberate defiance of the law can be shown.

One larger defendant, Houston Cellular, paid a reported $400,000 this spring to be let out of the case; plaintiff’s attorneys requested one-third of that amount as their fee. Last month another eight defendants reportedly chipped in a collective $125,000 to get out. Steven Zager, an attorney at Brobeck, Pfleger and Harrison who’s representing some defendants, said the federal statute provided the $500/$1,500 fines so as to allow individual grievants an economic means to vindicate their interests in a small-claims format and never contemplated aggregation into one grand class action: “This statute was not meant to be Powerball for the clever.” (Ron Nissimov, “Company settles over ‘junk faxes’; Houston Cellular to pay $400,000; others to fight”, Houston Chronicle, April 29; Mark Ballard, “Junk fax ban taken seriously”, National Law Journal, May 17; Ron Nissimov, “Some firms settle in ‘junk faxes’ case”, Houston Chronicle, Sept. 4; “That Blasted $7 Billion Fax“, Citizens Against Lawsuit Abuse — Houston) (update April 3, 2000: judge dismisses case).

October 22 – Foam-rubber cow recall. Computer maker Gateway used to distribute cute foam-rubber squeezable “Stress Cows” as a corporate promo, but now…well, you just can’t be too careful in today’s climate. “A few conscientious parents have alerted us that small children can tear or bite off parts of the stress cow, creating a potential choking hazard. In response to that concern, and in cooperation with the Consumer Product Safety Commission, Gateway has voluntarily stopped distributing this product and is recalling all Stress Cows previously given to clients.” (“Important Safety Notice“, Gateway Corp. website; the picture alone is worth the click).

October 22 – Canadian cow-naming update. See below entry (Oct. 21) for further developments in the brouhaha about whether Ottawa’s Central Experimental Farm may assign its bovine wards human names like “Bessie” and “Elsie”.

October 21 – Deal with us or we’ll tank your stock. With trial lawyers now launching a high-profile attack on managed care, HMO stocks have fallen by one-half or more from this year’s highs. Lawyers are seizing on this development in itself to “prod” the industry into “a swift settlement” of the actions, reports Owen Ullmann in yesterday’s USA Today. Trial lawyer potentate Richard Scruggs, tobacco-fee billionaire and brother-in-law of Senate Majority Leader Trent Lott (R-Miss.), “said Tuesday that economic pressure from investors” could force the companies to the table. “Trial lawyers have been telling Wall Street analysts that if the lawsuits are upheld, ‘they would put them (companies) out of business’” — and making such a pitch to those analysts, of course, helps along the process of getting the stocks to drop. Karen Ignagni, president of the American Association of Health Plans, said the situation “borders on extortion”, while Washington lawyer and veteran tort reformer Victor Schwartz said companies could wind up settling based not on the legal merits but on concern for stock price. (Owen Ullmann, “Wall Street may play part in HMO suits”, USA Today, Oct. 20 — fee-based archive).

Meanwhile, yesterday’s Boston Globe quotes experts who say the continuing onslaught of new trial lawyer initiatives, fueled by tobacco fees, could have a major depressing effect on the market more generally. “Many analysts think the lawyers will have trouble making the [HMO] suits stick. Still, no one can say for sure what will happen, and on Wall Street, uncertainty is trouble. ‘Until we get some clarity, I think the attitude of some investors will be, ‘I don’t need to own these stocks,’” says Linda Miller, manager of John Hancock’s Global Health Sciences Fund.” Shares in several paint and chemical companies also dropped sharply after trial lawyers launched a new wave of lead-paint litigation with Rhode Island as their first state-government client. (Steven Syre and Charles Stein, “Market’s new worry: lawsuits; Analysts believe wave of litigation just beginning”, Boston Globe, Oct. 20)

October 21 – Minnesota to auction seized cigarettes. State officials seized several thousand dollars’ worth of cigarettes, cigars and other tobacco items from the Smoke Shoppe and Book Nook in Brainerd, Minn. for nonpayment of taxes. On Saturday they’re scheduled to auction off that inventory for the state’s benefit, though Minnesota took the lead in suing cigarette makers and in hand-wringing generally over the continued legal sale of such products. Lynn Willenbring of the state Department of Revenue said the sale was required by state law but admitted the matter was “kind of a sticky wicket”. (Conrad DeFiebre, “State to sell smokes at delinquent-taxes auction”, Minneapolis Star-Tribune, Oct. 16).

October 21 – New Jersey court system faces employment complaint. The various branches of government that have taken on the mission of riding legal herd on private employers have themselves long faced an above-average rate of complaint from their own employees. Latest instance: the New Jersey courts, which along with California’s have won renown as the nation’s most inventive in finding new ways to let employees sue their bosses, face a complaint from their own clerks’ union alleging misclassification of workers, retaliation for collective bargaining activity and other sins. (Padraic Cassidy, “Judiciary Workers’ Union Files Unfair Labor Practices Charges”, New Jersey Law Journal, Sept. 20)

October 21 – Sensitivity in cow-naming. In a temporary advance for Canadian feminism, higher-ups last year ordered the Central Experimental Farm, an agricultural museum and research center in Ottawa, to stop giving cows human-female names like Elsie and Bessie because such names “might give offense to women,” the Boston Globe reports. “Some people are … sensitive to finding their name on an animal. I am, for example,” said Genevieve Ste.-Marie, who issued the order as director of the National Museum of Science and Technology. “Let’s say you came in and found your name on a cow, and you thought the cow was old and ugly.” Names like Clover, Rhubarb and Buttercup were still deemed okay, with borderline cases such as Daisy being decided on a “cow-by-cow basis”. Also cited as acceptable was “Bossy”. (Oct. 16 Sydney (Australia) Morning Herald, reprinting Colin Nickerson, “Canadian bureaucrats get bossy over Bessie”, Boston Globe, Oct. 13).

Sequel: on Oct. 15 the museum announced it would reverse its policy and go back to letting cows have human names, after having received a torrent of public comment, with “not one letter” favoring its sensitivity policy. (Kate Jaimet, “She’s no lady; Stephani’s a cow”, Montreal Gazette, Oct. 16).

October 20 – For this we gave up three months of our lives? No wonder the jurors’ eyes looked glazed — the patent infringement dispute between Honeywell and Litton Industries required them to master the numbing intricacies of ring laser gyro mirror coatings, “an optical film used to reflect laser beams in aircraft and missile guidance systems”. After a three-month trial they voted a mammoth verdict of $1.2 billion against Honeywell, a record for a patent infringement case, but that award later got thrown out. The U.S. is the only country that uses juries to decide complex patent cases; in 1980 the Third Circuit expressed the opinion that “the Seventh Amendment does not guarantee the right to jury trial when the lawsuit is so complex that jury will not be able to perform its task of rational decision making with a reasonable understanding of the evidence and the relevant legal rules.” (Kevin Livingston, “Junking the Jury?”, The Recorder/Cal Law, Oct. 19).

October 20 – The art of blame. A three-year-old is left unattended and forgotten in a van in 95-degree heat, and the van’s interior grows hotter and hotter until at last he dies of hyperthermia. Who deserves the blame? You may be a suitable candidate for practicing law if you guess the Ford Motor Co., for not designing and installing systems that would cool the air in parked cars. (Ben Schmitt, “Suit Demands Ford Add Safety Device to Cool Cars”, Fulton County Daily Report, Oct. 4).

October 20 – Spreading to Canada? A disgruntled fan has sued Ottawa Senators hockey captain Alexei Yashin and Yashin’s agent, Mark Gandler, over the Russian-born player’s refusal to show up at training camp to play with the team. Retired commercial real estate magnate Leonard Potechin is demanding a combined $27.5 million dollars (Canadian) of the two for having spoiled the season, to which Potechin held season tickets. (Ken Warren, “Fan files $27.5M suit against Yashin, agent”, Ottawa Citizen, Oct. 5) (update, Jan. 12: judge allows case to proceed).

October 19 – Maryland’s kingmaker. According to Peter Angelos, the state of Maryland owes him a cool billion dollars for representing it in the tobacco settlement, and it seems a distinct possibility that he’ll get it. The state legislature has gestured toward cutting in half his contracted 25 percent contingency fee, but that move is uncertain to stand up in court. In the mean time, Angelos’s refusal to recede from his fee means that tobacco booty which otherwise would flow into state coffers will sit in an escrow account over which he’ll exert partial control until the state resolves his claim.

In a March 28 profile, Washington Post reporters Daniel LeDuc and Michael E. Ruane write that Angelos is “viewed by many political insiders as the most powerful private citizen in Maryland.” Immensely wealthy from asbestos plaintiffs’ work — a 1997 National Law Journal list of influential lawyers (link now dead) describes him as “a perennial candidate for any list of the best-paid attorneys in the nation” — he branched out to buy the beloved hometown Baltimore Orioles and to become one of the most munificent donors to Democrats nationally as well as in Maryland. He now sports his own private lobbyist; glove-close relations with the governor and labor leaders; and a host of statehouse connections, such as with the state senate president pro tem, who happens to be a lawyer at Angelos’s firm.

Among the marks of his success has been the ability to steer “Angelos bills” through each year’s legislature whose effect is to enable him to extract more money from the defendants he sues. When a state appellate court ruled to limit damages on some of his asbestos cases earlier this year, for example, the Post reports, Angelos personally drafted a bill overturning the opinion and had two of his allies in Annapolis introduce it. (Those allies happened to be the Senate finance committee chairman and the House majority leader.) The bill reinstated higher damages for asbestos cases and for those cases only — most of which happen to be under Angelos’s control in the state. “Every time, it’s a bill that lines Peter Angelos’s pocket,” grumbles House Minority Whip Robert Flanagan (R-Howard). In the most remarkable episode, Maryland lawmakers (like Florida’s) agreed to change the rules retroactively to extinguish tobacco company legal defenses. We’ll all be living with that precedent for a long time: once legislators get a taste of the power to declare their opponents’ actions unlawful after the fact, it’s unlikely tobacco companies will be the last target. For his part, Angelos presents his statehouse efforts as essentially conservative and restorative: “The legislation I introduce is meant to reinstitute the litigation rights our citizens once had,” he told the Post of this year’s asbestos bill.

Angelos’s legislator-allies say the bills should be seen not as special interest legislation benefiting one person, but as a boon to an entire sector of the Maryland economy, which is what the lawyer’s far-flung operations have come to be. “Peter Angelos in and of himself is a major economic interest in the state,” explains one enthusiastic ally, House Majority Leader John Hurson (D-Montgomery). “His empire has grown so large, his benevolence so vast, they say, that to help Angelos is to help the whole state.” Daniel LeDuc and Michael E. Ruane, “Orioles Owner Masters Political Clout”, Washington Post, March 28; Daniel LeDuc, “Angelos, Md. Feud Over Tobacco Fee”, Washington Post, Oct. 15.

October 19 – Change your county’s name or I’ll sue. In 1820, an Ohio county was named after Revolutionary War hero Isaac Van Wart, but there’d been a spelling slip-up along the way, and the county’s name was rendered “Van Wert”. A few years ago a descendant of the original Van Wart family discovered the link and began writing letters to Ohio officials high and low asking that the error in the place name be corrected and the a replaced with an e. County officials demurred, saying the cost of changing title deeds and other documents would be far too high (aside from which, one presumes, after 170-odd years people had grown attached to the new name). Now Jeff Van Wart has begun approaching legal assistance groups in hopes they will help him launch a court action to force a name change: “I’m not going to let it drop.” (William Claiborne, “A War of Van Warts”, Washington Post, Oct. 12).

October 18 – Nominated by reader acclamation. Six months after their son barged into the Columbine High School cafeteria with guns and bombs and began killing people, Thomas and Susan Klebold have filed a lawsuit arguing that their neighbors should pay them. They say the school district and Jefferson County sheriff’s department mishandled warning signs about the behavior of their son Dylan and his pal Eric Harris before the massacre. Widely greeted as a memorable contribution to the annals of chutzpah, the Klebolds’ action could alternatively be construed as an effort to save themselves from ruin, since they’re being sued themselves by victim families; their statements imply that their suit is aimed at shifting those bills to public authorities, as opposed to actually making money from the slaughter. Either way they’ve helped establish a new record for this website, since never before have so many readers written in to suggest we take note of a case. Incidentally, the family of Cassie Bernall, best-known of the Columbine victims and a heroine to many Christians, has declined to press lawsuits: “We just made a family decision,” said father Brad Bernall. (Kevin Vaughan, “Klebold family plans to sue Jeffco“, Rocky Mountain News, Oct. 16; Tracy Connor, “Columbine HS Killer’s Parents Stun School with Lawsuit”, New York Post; Steve Dunleavy, “I Mean, Talk About Chutzpah!”, New York Post).

October 18 – Couple ordered to pay $57,000 for campaign ads criticizing judge. Robert and Olga Osterberg of El Paso, Texas, were dissatisfied with how litigation of theirs had been handled by state judge Peter Peca, so they bought TV ads advocating his defeat in a Democratic primary. But Texas law allows candidates to file private lawsuits against ordinary citizens charging them with campaign-law violations, and Judge Peca (who won the primary despite the ads) proceeded to sue the Osterbergs, charging them with having missed a disclosure deadline. On July 29 the Texas Supreme Court by a 7-2 margin ruled in the judge’s favor, and ordered the Osterbergs to pay him $57,390 — twice what they’d spent on the commercials. Dissenting justice Craig Enoch said the decision left the couple unfairly open to penalties for expenditures they may not have realized were illegal. Another justice expressed concern that the disclosure requirements of Texas election law “may be so cumbersome for ordinary citizens that they unduly burden free speech”, but voted to uphold the award anyway. (“Texas judge gets revenge, couple ordered to pay $50,390 [sic] in damages for missing report deadline”, Political Finance and Lobby Reporter, Aug. 25 — link now dead (PDF document, Adobe Acrobat needed to view; scroll down to p. 7)).

October 18 – Format changes at this site. We installed a number of format improvements to Overlawyered.com over the weekend, mostly inconspicuous ones relating to how the site’s archives work. Items will now be archived the same day they appear, which eases life for anyone wishing to cite or link to a recent commentary (we recommend pointing to the archives address rather than this front page). The front page will now maintain only a few days’ worth of items, down from eight, which will mean faster loading for readers with slow connections. Table widths have been tinkered with to provide better display for readers with small usable screen sizes. You’ll also notice a new tell-a-friend-about-this-site service, which appears on more pages than before.

October 18 – Times’s so-called objectivity. Sent this morning: “Letters to the Editor, The New York Times, To the Editor: A quick computer survey of the last three years’ worth of the Times‘s national coverage indicates that your editors have generally taken care to restrict the pejorative formula ‘so-called…reform’ to the editorial portions of the paper, and that it has been employed there almost exclusively by letter-writers and columnists frankly hostile to the measures under discussion (‘so-called campaign finance reform’, ‘so-called welfare reform’, etc.). But there’s one glaring exception: twice now in recent months your reporters (‘How a Company Lets Its Cash Talk’, Stephen Labaton, October 17, and ‘State Courts Sweeping Away Laws Curbing Suits For Injuries’, William Glaberson, July 16) have employed the phrase ‘so-called tort reform’ in prominent news stories. No other national domestic issue has been accorded this slighting treatment. What is it about the movement to rein in trial-lawyer excesses that causes the Times to forget its usual journalistic standards? Very truly yours, etc.” — our editor. [Never ran.]

October 18 – Trop d’avocats.com. Belated thanks to the English-language Montreal Gazette, which recommended this site September 18 in its “Quick Clicks” column: “Students of the excesses of the litigious United States should check out this site, recently launched by Manhattan Institute senior fellow Walter Olson. He said he wanted to document ‘the need for reform of the American civil justice system.’ The page is updated regularly with legal horror stories and links.”

October 16-17 – Illinois tobacco fees. Chicago’s Freeborn & Peters and Seattle’s Hagens & Berman complain bitterly at an arbitration panel’s decision to give them a mere $121 million for representing the state of Illinois in its tobacco-Medicaid suit when they felt they deserved closer to $400 million. The arbitrators pointed out that the firms hadn’t submitted any time records of hours spent on the state’s case and had done “relatively little” to advance the Illinois claims toward trial, not even having taken any depositions. The state’s attorney general, Jim Ryan, had signed the pact with the two firms and later was the one who agreed to settle the state’s case, thus triggering their fee entitlement; his “close ties to Freeborn & Peters had come under earlier scrutiny”, reports the Chicago Sun-Times’s Dave McKinney (“Law firms decry cut in tobacco fees”, Oct. 12 — link now dead; John McCarron, “Fee Frenzy”, Chicago Tribune, July 26) (see also tobacco-fee coverage for Kansas (Oct. 11, below), New Jersey, Wisconsin).

October 16-17 – Hey, what is this place, anyway? The term “weblog” refers to a running diary of interesting stuff found around the Web, usually with some degree of annotation. Overlawyered.com, for all its fancy policy pretensions, basically follows this format. There are now hundreds if not thousands of weblogs being published and a site called jjg.net has pulled together most of the ones you’ll want to know about. We immediately spotted a bunch of our favorites like the elegant Arts & Letters Daily, the Junk Science Page, Jim Romanesko’s Media Gossip and Obscure Store, Bifurcated Rivets and leftish Robot Wisdom before going on to check out fun unfamiliars like postsecondary.net (higher education) and Deduct Box (Louisiana politics).

jjg.net is put out by a Southern Californian named Jesse James Garnett who inevitably has his own weblog Infosift, a good one. We quote in its entirety an entry for October 11, hyperlinks and all: “According to the Pez people, my use of the word Pez in this sentence is a violation of Pez trademarks and makes me subject to prosecution by Pez Candy in defense of the Pez name. Pez Pez Pez. Pez.”

October 16-17 – Wide world of federal law enforcement. The National Journal news service is reporting (not online) that the House Judiciary Committee on Wednesday gave its approval to H.R. 1887, which would impose federal prison sentences of up to five years and fines on anyone who distributes depictions of animal cruelty unlawful under state law. The bill is aimed at “purveyors of so-called ‘crush videos’ who cater to foot fetishists by selling videos of women crushing small animals with high-heeled shoes.” Insect-crushing is also featured in some videos. The bill would, however, apparently ban a much wider array of films and printed matter, raising the possibility that it might become illegal to broadcast news programs on bullfighting in Spain or elephant poaching in Africa, so lawmakers hastily added an amendment exempting depictions with “journalistic, religious, political, educational, historic or artistic value”. (Not mentioned in reporting was whether home videos of pet snakes being given their daily feeding of live mice would remain legal.) A succession of legal authorities from Chief Justice Rehnquist on down have warned that too many crimes are being federalized, but after testimony that included a plea from Hollywood animal lover Loretta Swit, legislators decided the crush-video crisis demanded national action (“Ban Sought on Animal ‘Crush Videos’”, AP/APB News, Aug. 24; “Bill Cracks Down on Animal-Torture Videos”, AP/APB News, Oct. 1).

October 16-17 – “Health care horror stories are compelling but one-sided”. They call us anecdotal, but when it comes time to press for new rights to sue you can bet boosters of litigation don’t linger for long over dry statistics about how the health care system is performing as a whole; instead we get wrenching stories of how when Mrs. Jones got cancer she couldn’t get her HMO to cover experimental treatment, or how the Children’s Hospital of San Diego sent little Steve home when they should have known he was very sick. Fair enough, you figure, both sides can play. But Tuesday’s New York Times reports a problem in checking many of the HMO horror stories: “The health plans and providers cannot discuss individual cases because of patient confidentiality laws. And although patients can waive such restrictions, they generally do not.” So only the one side makes it onto the public record. A Ralph Nader group has been vigorously circulating the little Steve story for four years but concedes it can’t insure its veracity.

It’s not always that the Times does this good a job of shedding light on a major litigation issue. So why’d they bury this piece without a byline on page A29 — especially when a few months back they devoted a big front-page spread to reporter Bill Glaberson’s charges that the case for tort reform was merely anecdotal? (“Health Care Horror Stories Are Compelling But One-Sided”, unbylined, New York Times, Oct. 12)

Tagged as: antitrust, arbitration, asbestos, attorneys general, Australia, Baltimore, Canada, contingent fee, Denver, Detroit, divorce, domestic violence, Ford Motor, free speech, governors, hospitals, Houston, Illinois, lead paint, Louisiana, Manhattan Institute, Maryland, Minnesota, New Jersey, Ohio, Philadelphia, pro se, Ralph Nader, Rhode Island, San Diego, Seattle, Spain, The Litigation Explosion, tobacco, tobacco settlement, trademarks, Wisconsin, zero tolerance

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