Janiece Lacross, a drunk-driving defense lawyer in Washington state, has lately run into her own trouble with the law: “Last November she drove drunk with her three young children in the backseat. She hit a boy on his bike in Kitsap County, breaking his leg and sending him into the bushes. But the vehicular assault charge against her was dropped and reduced to just a DUI, which brought Mothers Against Drunk Driving to court to find out why.” Lacross entered rehab and will accept home monitoring and attend victim impact events as part of her plea in Tacoma to DUI and three counts of reckless endangerment; her repentant statements in court even made a relatively favorable impression on MADD, not the easiest thing to do. The passing bit of the story that induced a momentary double take: as part of her penitence, it is said that Lacross “even helped the young victim, Joseph Griffith, with his civil suit for personal injuries”. Against herself? (Keith Eldridge, KOMO, Oct. 1).

In Thurston County (Olympia), Washington, a cannon explosion during a backyard party fatally injured 8-year-old Devan Vyborny. “Now, more than 14 months later, the boy’s family is taking legal action, but not with anyone having to do with that cannon. Instead, the boy’s parents are blaming rescue crews and 911 dispatchers. … Despite the scathing allegations, the rescue crew’s actions had not been called into question until the claim was filed.” (Ray Lane, “Family of boy hit by shrapnel seeks $47 million”, KOMO, Sept. 23).

• Nothing new about lawyers stealing money from estates, but embarrassing when they used to head the bar association [Eagle-Tribune; Lawrence, Mass., Arthur Khoury]
• Unusual “reverse quota” case: black job applicant wins $30K after showing beauty supply company turned her down because it had a quota of whites to hire [SE Texas Record]
• Who knew? Per class action allegations, pet food contains ingredients “unfit for human consumption” [Daily Business Review]
• U.K.: “A divorcee who won a £1.4million payout from her multi-millionaire husband is suing her lawyers because she claims she should have got twice that amount.” [Telegraph]
• UW freshman falls from fourth-floor dorm window after drinking at “Trashed Tuesday”, now wants $ from Delta Upsilon International as well as construction firm that put in windows [Seattle P-I, KOMO]
• After giant $103 million payday, current and former partners at Minneapolis law firm are torn by feuds and dissension — wasn’t there a John Steinbeck novella about that? [ABA Journal and again, Heins Mills]
• Small firm that used to make Wal-Mart in-house videos sets up shop at AAJ/ATLA convention hawking those videos for use in suits against the retailer [Arkansas Democrat Gazette, earlier]
• When the judge’s kid gets busted [Eric Berlin; Alabama]

Three years ago we noted (following reporting by Ed Lowe and J.E. Espino of the Appleton, Wis. Post-Crescent) (more) that

Representatives of the Hollywood, Fla.-based law firm of Schwartz Zweben & Associates have played a substantial role behind the scenes in helping organize, promote and support the Ms. Wheelchair America pageant and some of its state affiliates. And lawyers with the firm have filed more than 200 lawsuits in at least seven states and the District of Columbia on behalf of at least 13 pageant participants, “including state and national titleholders, state coordinators and pageant judges”.

Now the Birmingham, Ala. News follows up on the case of Colleen Macort, Ms. Wheelchair Florida 2002, who has filed more than 73 disabled-accessibility actions in Alabama “but has never spent a day in court because of settlements”. Local law provides that Macort cannot be compensated for filing the lawsuits, but the Wisconsin paper reported that the firm of Schwartz Zweben had engaged her as a consultant on other cases. The reporter is kind enough to quote me and mention this site (Liz Ellaby, “Bessemer woman crusades to address disability act violations, provoking critics”, Birmingham News, Jul. 3).

In the state of Washington, Ms. Wheelchair Washington 2005, Michelle Beardshear, has teamed up with the Florida firm to file 15 lawsuits, of which twelve have been settled, against enterprises in Clark County (Kathie Durbin, “Advocate for disabled not hesitant to sue for access”, The Columbian, May 27 courtesy Chamber ILR). And in March, Schwartz Zweben & Slingbaum (as it is now called) swooped down to sue twelve defendants in the Tucson area, including a number of well-known restaurants, alleging ADA violations. (Josh Brodesky, “12 Tucson businesses facing suits alleging Disabilities Act problems”, Arizona Daily Star, Mar. 28).

The notion that present-day Democrats regularly steal elections by engaging in concerted efforts to vote multiple times in funny mustaches is a myth, unsupported by data or fact.

– Dahlia Lithwick, Slate, May 24

As outlined at trial, the vote fraud scheme infected not only the actual voting process in November, but also the voter registration process preceding the election. Several persons, including the defendant Cusack, falsely registered to vote by claiming to reside at addresses within the precinct when they actually resided elsewhere. The actual residents at these addresses were asked to place name-tags on their doors that bore the names of the non-resident registrants. The defendants, and several others acting under their direction, also participated in a canvass of the precinct …. Although the canvass disclosed that a number of persons who were registered to vote in the precinct had died, moved away, or for some other reason had become ineligible to vote, these persons were not struck from the list of eligible voters. Finally, on election day the defendants, either personally or by acting through others, caused numerous false ballots to be cast for the straight Democratic ticket.

– United States v. Howard, 774 F.2d 838 (7th Cir. 1985)

[T]he U.S. Attorney in Chicago at the time, Daniel Webb, estimated that at least 100,000 fraudulent votes (10 percent of all votes in the city) had been cast. Sixty-five individuals were indicted for federal election crimes, and all but two (one found incompetent to stand trial and another who died) were convicted.

– Hans A. von Spakovsky, Heritage Legal Memorandum #23

Update: Some commenters complain that the 1982 example is irrelevant to Lithwick’s claim, because it is modified by “present-day.”

Present-day examples include 2007 cases in Hoboken, NJ, Noxubee, MS, and King County, WA—not to mention the unprosecuted voter fraud in Washington state in 2004, which affected the gubernatorial election. There may be many more examples, except Democrats are using lawsuits to block attempts to compare voter rolls with addresses.

Lithwick’s argument against present-day voter fraud is that there are very few prosecutions, and that therefore prevention measures are not needed. This is akin to arguing that, because very few people are ticketed for running red lights, there is no need for traffic signals. If there’s less voter fraud today, it’s in large part because of the prosecutions in the 1980s. Given Senator Obama’s appalling block on the van Spakovsky nomination to the FEC, and the liberal activism against preventing vote fraud, one worries that an Obama Justice Department will cease prosecuting voter fraud, and that there will be a return to the bad old days, in which case 1980s examples from when the DOJ first started prosecuting vote fraud are quite relevant.

Sports doctors say more youngsters are coming in with arm injuries from excessive hard pitching on the baseball field. In Washington state, Jason Koenig has lost his lawsuit claiming that North Mason High School was negligent in not overriding his wishes to stay in for all nine innings, 140 pitches, in a game in April 2001, resulting in injury to his arm. (Tom Wyrwich, “Former high school pitcher hopes rules are changed to protect young arms”, Seattle Times, Apr. 29).

“A Washington state woman who sued Ford Motor over her injuries in an SUV rollover accident isn’t exactly thrilled that a jury cleared the automaker — and awarded her $6 million in damages against her sister, who was the driver of the vehicle. … The federal jury in Spokane, Wash., found Marla Bear 100 percent at fault for losing control of the SUV, in which her younger sister was a passenger. According to trial testimony, the car swerved when she looked over her shoulder to see if Crystal had her seat belt attached.” Ford’s own attorney, whether for tactical reasons of sympathy or otherwise, had advised the jury against blaming the sister. (Matthew Heller, OnPoint News, Mar. 20) (via The Briefcase).

A Washington state prison inmate serving 24 years for arranging to firebomb two lawyers’ cars has a right to seek personal information about state attorneys, prison guards and judges, a court case has determined, even if it isn’t apparent that doing so serves the public interest.

Under open records laws, ruled King County Superior Judge Glenna Hall, public officials have no discretion about whether to give a man like Allan Parmelee access to public documents that reveal personal details about public workers, reports the Associated Press. Prosecutor Dan Satterberg had sought an injunction barring Parmelee from making further requests without court permission under the Washington Public Records Act, arguing that they are harassing and could put his staff in danger.

Parmelee reportedly has filed hundreds of public records requests seeking photos, work schedules, pay rates, phone numbers and birth dates for state attorneys, prison workers and even judges.

(Martha Neil, “Creepy Convict Has Right to See Lawyer-Related Public Records”, ABA Journal, Mar. 25). Earlier: Feb. 1.

After Joshua Hoge stabbed his mother and brother to death with a butcher knife, he was found not guilty by reason of insanity and committed to Washington’s Western State Hospital. His mother’s estate then sued King County and won $800,000 “when it was determined that a public-health clinic had failed to give Hoge his medication and was partially responsible for the slayings.” Now Hoge is suing to obtain part of his mother’s estate, which would allow him to capture some of the lawsuit winnings. A Washington statute restricts killers from profiting by their crimes, but by its terms applies to “willful” killings. Besides, says Jean O’Laughlin, Hoge’s attorney, her client isn’t covered because he was found not guilty. A Seattle University associate professor of Law, John Strait, agrees: “For all intents and purposes, there is no crime. We don’t punish people for being really sick. We don’t impose criminal culpability on people who are mentally ill,” he said. “It’s nutty logic.” (Natalie Singer, Seattle Times, Jan. 3). I wrote a couple of years ago about Washington state’s unusually broad assignment of liability to public agencies for crime and other private misconduct.

“Threatened with a potential defamation suit, two individuals have apparently retracted their claimed characterization of a Spokane, Wash.-area law firm formerly known as ‘Wetzel & Wetzel’ as ‘Weasel & Weasel.’” Jim MacDonald, president of the Bayview, Idaho Chamber of Commerce, “read a letter of contrition” at the chamber’s regular monthly meeting “as demanded” by the offended lawyers. Does this mean we’re going to get in trouble with our earlier references to Cruel & Boring, We’ll Getcha & Mangle Ya, Huge Cupboards of Greed, etc.? (Martha Neil, ABA Journal, Oct. 25; Herb Huseland, “Bayview News: Law firm claims slander”, Spokane Statesman-Review, Oct. 25).

P.S. Australian lawyer Stumbling Tumblr adds, “there’s no indication in the story whether weasels had also threatened proceedings”.

I previously posted on Washington’s Insurance Fair Conduct Act, known as Referendum 67. If passed by the voters, it would allow first party claimants to recover triple damages and attorney fees for those claims “unreasonably” delayed or denied.

Existing law already allows a wronged insured to bring three separate causes of action against his/her insurer for such claims: breach of contract, bad faith and violations under Washington’s Consumer Protection Act (CPA). Such existing remedies often yield bizarre results as we saw in the Woo v. Fireman’s Fund case.

The Supreme Court’s knuckleheaded 5-4 ruling upheld a judgment to pay Woo $250K he paid to settle an underlying suit, plus $750K in emotional distress and attorney fees. Obviously, there are already plenty of incentives for an insurer to avoid these judgments by acting fairly, and under this legislation Woo could have received three times more as punitive damages in addition to the “emotional distress” damages which have a punitive measure built into them. And in case you are wondering, Fireman’s Fund coverage position was perfectly reasonable.

The television ads for the Approve 67 camp are demagogic and misleading, if not outright lies. The worst has to be the ad featuring Tiffany Forslund whose father, firefighter David Potter, died allegedly because an insurer delayed payment for necessary health treatment. Forslund says:

My father would have given his life in the line of duty, turns out the insurance company took it instead.

What tripe. Not only would R-67 not apply to her father’s claim (it is intended to benefit auto, home and property policies–not health insurance) it’s not true according to the mayor of the city for which Potter worked, who said it would be covered as a workers’ compensation claim or through the city’s health plan. But the attorneys promoting this legislation could not resist such a sympathetic story of a firefighter allegedly killed by an insurance company, even if it’s entirely off-point and probably untrue. Demagoguery at its finest. And, if the claim is true Potter’s family already has remedies under existing law for emotional distress, which, for a lost loved one are rightfully substantial and the threat of such judgments deter wrongful insurer conduct. Why shall we now triple those damages?

Attorney fees are typically one-third of the gross recovery. So if the gross recovery is tripled it equals a bigger fee. But let’s say the insured prevails but the gross recovery is small? No problem. Just submit your fee request to the court on an hourly basis if it provides a greater recovery for the attorney. And, here’s another little tidbit: the attorney fee provision is mandatory but the triple damages are at the court’s discretion. Who’s looking out for who here, really? And, that the triple/punitive damages are for the deliberately vague “unreasonable” and not for criminal, willful or wanton conduct as you would expect (and would be deserved) to award punitive damages makes for a juicy tidbit indeed.

And, there’s no crisis in the first place. Check out this link from the Insurance Commissioner of Washington State showing the number of complaints against individual insurers. In 2006, Private Passenger Auto Insurance Complaints averaged one complaint for every $1.5M in premium and Homeowners Insurance Complaints averaged one complaint for every $2.5M in premium. Hardly a crisis, and nothing worthy of threatening triple damages in every instance.

This legislation will enrich those attorneys bringing these suits, bring a windfall to a small number of insureds at the greater expense of all who pay insurance, directly or indirectly.

Here is an interesting but tragic case currently in trial in King County, Washington. Maria Federici, a then 24-year-old woman was gravely injured when an entertainment center flew from a U-Haul trailer attached to a vehicle operated by another motorist. It smashed through the windshield of Federici’s following vehicle, striking her in the face crushing every bone in it. She suffered blindness and permanent disfigurement. Media accounts are here, here and here.

I’m not posting to criticize Federici’s suit per se. It has noteworthy flaws to be sure–for instance there is evidence suggesting her blood alcohol content (BAC) was above the legal limit while she was driving, but the BAC was obtained under circumstances suggesting the results were unreliable (the injury trauma and resultant blood loss may have affected the BAC.) And her boss testified that she had only one glass of wine prior to the accident. Notably, the court disallowed the BAC evidence at trial.

So, Federici sues the motorist who failed to tie down the entertainment center, U-Haul and the rental company for alleged design flaws in the trailer and alleged negligent rental practices. Okay, so the motorist can own up for his negligence and U-Haul and the agency can own up for theirs, right? Not so fast. Washington State allows for a fault-free plaintiff to recover all damages from any defendant even 1% at fault.

With or without evidence of intoxication I wonder if Federici could have avoided anything flying toward her while traveling at freeway speeds. So, let’s assume the jury assigns her zero fault. That leaves 100% of potential fault for the defendants. Now, if you read the media accounts it seems to me that the motorist carries the majority of any fault for failing to secure his load, causing the accident. But, who has the deepest pockets? Let me help you: it’s not the motorist.

The plaintiff attorney in this instance will pull out the stops–do anything–to implicate U-Haul, and to a lesser extent the rental agency for any little amount of liability they can so that his client can collect the entire judgment from them (I suspect U-Haul has sufficient assets; the rental agency, if the Mom-and-Pop type, maybe not.) I don’t blame the plaintiff’s attorney, really–he has to advocate his client’s interests. But, it shows how twisted and wrongheaded the joint & several statute is in Washington. Nothing against Federici here, she’s suffered enough. But I struggle with holding some people accountable for damages caused by others. Does this make any sense to you?

Let’s look at the Mission Statement for the American Association for Justice (formerly the Association of Trial Lawyers of America):

The Mission of the American Association for Justice is to promote a fair and effective justice system – and to support the work of attorneys in their efforts to ensure that any person who is injured by the misconduct or negligence of others can obtain justice in America’s courtrooms, even when taking on the most powerful interests.

I’m all for that! Especially that part that says “fair”. Is it fair to hold a 1% wrongdoer accountable for 100% of the damages? If so, why? Because I don’t agree and I’d like to know if I’m wrong. And, I just know the AAJ would scream bloody murder if anyone tried to amend that statute.

• Shocker- Washington state trial lawyers lie in ad promoting litigation windfall referendum. [The Olympian; Reject R-67]
• Mississippi AG Jim Hood rewards his out-of-state trial-lawyer campaign donors. [Hattiesburg American]
• Update: Illinois Justice Robert R. Thomas settles his libel case; sued reporter is unrepentant. [Law.com]
• Update: Cop withdraws slip-and-fall lawsuit; department placed her on paid leave and is investigating [South Florida Sun-Sentinel]

• Update: 1-800-Flowers suit dismissed on technicality; plaintiff adulterer vows to refile in New York. [On Point]
• Update: Court reverses injunction in whales v. US Navy sonar lawsuit, but lawyers vow to keep trying. [Bashman roundup]

• Wrongful sermon a cause of action? [On Point]
• Don’t expect your rapist to be convicted by a Philadelphia jury. [Philly Magazine]
• Facebook as treasure-mine for litigation evidence. [Law.com]
• Dry-cleaners can bring frivolous lawsuits, too. [New York Post]

My last post commented on Washington’s Insurance Fair Conduct Act. The Act is up for public vote as Referendum 67. Check out the web sites advocating approval or rejection of the measure.

The “Approve 67″ web site struck me as a bit demagogic–the main page shows a young girl clutching a teddy bear being comforted by (apparently) her father. The next shot is a man in a wheelchair, face cast sullenly downward. (Ostensibly suffering from insurance company malfeasance.) The final shot is a generic image of an emergency clinic. Then, under the “Take Action” column on your left there’s a link to “Share Your Insurance Horror Story.” (As of this writing there is a grand total of three “horror” stories.)

Under the endorsements tab, trial lawyers are notably absent–at least from the list. There are, however, multiple labor organizations as well as the Washington State Democratic Party. Under the “About Referendum 67″ tab [with my comment]:

If an insurance company unfairly denies a legitimate claim, your only recourse is to sue. But if you win, the only thing they have to pay is the amount of the original claim [not true, just ask millionaire prankster dentist Robert Woo.] Referendum 67 creates an incentive [there already are incentives: coverage by waiver or estoppel, Olympic Steamship attorney fees and the Washington Consumer Protection Act (CPA)] to treat legitimate claims fairly by allowing the court to assess penalties if an insurance company illegally denies or delays payment of a legitimate claim.

Referendum 67 would help to ensure that the insurance industry honor their commitments to treat all policyholders honestly by making it against the law [it's already against the law, silly--see the existing RCW and WAC] to unreasonably delay or deny legitimate claims.

The News Tribune in its story Let’s not try to fix an insurance industry that’s not broken says:

That the system is working well is illustrated by a storm of a different sort: the windstorm that smashed into Western Washington earlier this year. Within less than four months of the event, according to a recent study, 90 percent of the 42,000 claims were settled, for $170 million in compensation. Most of the remaining claims remained unsettled due to lack of qualified contractors or the time needed to rebuild homes. Only three complaints were filed with the insurance commissioner’s office.

I don’t know if I would characterize this legislation as a jackpot for trial lawyers, but it’s probably unnecessary and will increase the frequency of litigated first party claims at the greater expense of the insurance paying public. It’s up to Washington voters to get it right.

Applying Washington state disability-rights law, the Ninth Circuit has ruled that an employee’s “violent and profane” outburst to supervisors may be a protected manifestation of her bipolar disorder and thus not grounds for termination. Although the court cautioned that not all disability-induced misconduct should be seen as protected, it ruled that the law protects “manifestations” of a mental or physical disability just as it protects the disability itself (Gambini v. Total Renal Care, opinion in PDF format; HR.BLR.com, Jun. 11; Workplace Law Prof, Jun. 15). For more on the Ninth Circuit and disabled-rights law, including some misconduct cases, see Oct. 7 and Oct. 14, 2003; Oct. 12 and Dec. 6, 2006, Mar. 23, 2007. For a contrasting Massachusetts case, see Jun. 28, 2006.

• How to handle illegal alien’s slip-fall suit against supermarket? With some delicacy: jury told only that plaintiff “couldn’t legally work in this country” [Oroville, Calif., Mercury-Register]


• Sorry, docs: “I hate doctors” beats out “I hate lawyers” as a Google search result [Bioethics Discussion Blog via KevinMD]


• Virginia adopts harrowingly punitive schedule of traffic fines. Its sponsor: lawmaker whose day job is defending motorists [Washington Post; NRO "The Corner"; Ribstein; our earlier report]


• A businessman in London is suing Google for “publishing” (by indexing) allegedly defamatory material, and, boy, will the Internet ever be a different place if he wins [Independent (U.K.), Volokh]


• Federal indictment charges Houston injury lawyer secretly paid $3 million to two Hartford Insurance claims adjusters in connection with $34 million in silicosis settlements [PoL]


• Mississippi high court rules invalid former AG Mike Moore’s slush-fund diversion of $20 million/year in tobacco settlement money to evade legislative oversight [Sun-Herald, Bader; also this PoL roundup]


• More RIAA-suit horrors, this time from Washington state [Seattle P-I] Prospects for a counterattack? [Pasquale, Concurring Opinions]


• California Assembly votes to require pet owners to sterilize mixed-breed dogs and cats, while UK animal rights authority mulls rights for invertebrates [Mangu-Ward and Bailey, Reason]


• Here come the tainted-Chinese-export suits, with many American defendants on the hook [Parloff, Fortune] Plus: car with the “E COLI” license plate may be driving lawyer to work [WSJ Law Blog]


• Gimme those antiquities: Peru vs. Yale on Machu Picchu relics [Zincavage]


• Dick Schaap med-mal case evokes shifting theories from celebrated lawyer Tom Moore [two years ago at Overlawyered]

Free speech survives intact: the Washington Supreme Court has unanimously ruled that radio talk show hosts’ urging of listeners to support a ballot measure does not constitute a “contribution” to the yes side for purposes of mandatory reporting under campaign finance law. (Ryan Sager, New York Sun blog, Apr. 26). We covered the charges against KVI hosts Kirby Wilbur and John Carlson Jul. 11 and Jul. 19, 2005. Eugene Volokh has extensive coverage of the new decision. A concurring opinion by Justice James M. Johnson, joined by Justice Richard B. Sanders, terms the enforcement a case of “abusive prosecution”. More: Michelle Malkin; John Fund, OpinionJournal.com, Apr. 30.

• My Oct. 28 WSJ op-ed is now on-line for free. [AEI]
• Your tax dollars at work: $24.2 million for two 17-year-old trespassers burned by high-voltage electrical wires six feet above the top of an Amtrak train that they had climbed. The one who received “only” $6.8 million had injuries minor enough that he’s serving in the Army now. [Lancaster Online via Northridge Buzz Blog]
• Refuting trial lawyers’ claims of repealing McCarran-Ferguson as a panacea for insurance rates. [Point of Law]
• “At what point are these accommodations exacerbating learning disabilities, and creating life disabiltities?” [Ivey; Wall Street Journal]
• $1.5 million verdict: plaintiff blamed her bipolar disorder on a nurse’s error that caused a lung to collapse. [Columbus Ledger-Enquirer; see also Kevin MD commenters]
• Trial lawyers insult West Virginia businessmen for daring to challenge their hegemony. [Institute for Legal Reform]
• Bank of America overcredits account, takes money back, gets hit with California state class action verdict that could cost billions. [Point of Law]
• Latest Duke lacrosse case outrage: prosecutor’s office says it hasn’t even interviewed alleged victim. [Volokh; Outside the Beltway; Corner]
• In anticipation of Philip Morris v. Williams, hear the great Sheila Birnbaum argue State Farm v. Campbell. [Oyez MP3 via Mass Torts Prof]
• Kristol: the U.S. Senate still matters because of judicial nominations. [Weekly Standard]
• Election challenge to Washington state incumbent Supreme Court justice who is supported by trial lawyers. [Seattle Post-Intelligencer via Bashman]
• Don’t tell AG Lockyer, or he’ll want to sue the fat for global warming. [NY Times via Kevin MD]