• Sure enough, former Milberg lawyers sue the convicted ex-Milberg lawyers for breach of fiduciary duty. I was wondering when that was going to happen. [WSJ Law Blog; NYLJ/law.com; earlier]
• “Schneider said others in the legal community initially had a hard time understanding why he had filed a grievance against a fellow attorney.” After all, she had only stolen $200,000 from clients. [Las Vegas Review-Journal via ABA]
• Judge: No evidence of wrongdoing by Kenneth Pasternak. Too bad he can’t get his three years back. Meanwhile SEC keeps bringing enforcement cases on same repeatedly rejected theory of liability. [WSJ; Law Blog]
  
• “What the AP and The New York Times’ Hansell don’t seem to realize is how hostile an act it is to send lawyer letters to individuals.” [Jarvis via Patterico]
• “When judges act like politicians, the judicial selection process – elected or appointed – becomes increasingly political. Action and reaction. The politicization of the court led to the politicization of the elections for justices. … When justices arrogate political policymaking to themselves, they should not be surprised when they are held to the same standards as politicians.” [Wisconsin Policy Research Institute via American Courthouse; I said that, too]
• Even Susan Estrich finds the Alex Kozinski web site mini-to-do as evidence of media bias. [Estrich; Patterico link roundup]
• Senator McCaskill shows her ignorance on the Anheuser-Busch merger and corporate officer duties. [Hodak]
• A clever attorney will already have a fill-in-the-blanks product liability complaint drafted against Lego. [Childs]
• Hugo Chavez expropriates wealth to consolidate dictatorship. American lawyer helps. Somehow I don’t think we’ll see an Alien Tort Claims Act suit against his law firm. [AmLaw Daily]

The lowest medical malpractice insurance rates are found in Minnesota, Wisconsin, Iowa and the Dakotas. Why is that? Probably not because doctors there have managed to achieve anything resembling error-free practice; and probably not because the five states, taken as a whole, are distinguished by any unusually pro-defendant set of tort laws. MedInnovationBlog takes up the question here and here, and speaks with a mutual insurer executive in search of explanations, which may include (among others) a “culture of collegiality among doctors and society as a whole”, a hard line against doubtful claims, and a paucity of giant verdicts of the John Edwards variety. (cross-posted from Point of Law).

Three cases of catastrophic injury to children, three defendants asked to pay:

• Freak accident in school parking lot “foreseeable”. According to a Los Angeles jury, it was reasonably foreseeable that an ailing parent driving a disability-converted van with hand-controlled accelerator and brakes would lose control of her vehicle and jump the curb at full speed, killing first-grader Jordan Sandels in the company of her father at Encino’s Lanai Road Elementary School in 2005. Aside from the many and baffling supposed lessons of the resulting $10 million verdict for school grounds planners (always build lots big enough that parents won’t have to park off-site?), a highlight was the jury’s finding that the parent behind the wheel was only 20 percent to blame and shouldn’t have to pay anything [LA Times via Handel on the Law]
• Destroy evidence, then win $41 million from second defendant. Joseph Provenza, 13, was catastrophically burned in 2001 when he “jumped a 15-year-old Yamaha motorcycle resulting in a crash and post-crash fire” [Bowman & Brooke summary] The plaintiff’s father, himself a plaintiff in the suit, later admitted that he willfully removed and discarded a bypass wire from the motorcycle before Yamaha’s investigators could see it because he thought the evidence of modification might interfere with his son’s lawsuit, and either he or members of the legal team removed or modified other relevant equipment on the vehicle. A judge dismissed the claims against Yamaha, citing willful and pervasive spoliation of evidence as well as lack of candor in discovery responses on the issue. The family then proceeded to trial against a Wisconsin clothing manufacturer which it argued should have made its garments flame-retardant because they were promoted for use with motorcycles, although federal law did not and does not require flame retardance in such garments. The jury awarded $41 million; a defense lawyer says the jurors were never allowed to learn about the hot-wire modification, though it was the cause of the accident, or the subsequent spoliation. [Las Vegas Review-Journal, Janesville (Wis.) Gazette; Carcione law firm (also of Romo v. Ford Motor fame)]. More: BrooklynWolf.
• Schools sometimes responsible for injuries after school hours.The South Main Street Elementary School in Pleasantville, N.J. had long preannounced a 1:30 p.m. early dismissal on a certain day in 2001. Third-grader Joseph Jerkins was allowed to leave, in accord with school policy for youngsters whose families had not requested that they be released only into adult custody. Two hours and twenty minutes later, while playing with a friend, Joseph ran into the street and was struck by a car and horribly injured. The family said it had not been adequately informed of the early dismissal. A trial court dismissed the suit, but the New Jersey Supreme Court, announcing a new duty of care for school districts, ruled that the family could sue on the grounds that the school’s policies should have restrained the boy from leaving. The district settled for $6 million. [AP/Philly.com; NJ Principals and Supervisors Association]

• “Of all the body parts to Xerox!” Another round of stories on efforts to reduce liabilities from office holiday parties [ABA Journal, Above the Law, and relatedly Megan McArdle]
• New edition of Tillinghast/Towers Perrin study on insurance costs of liability system finds they went down last year, which doesn’t happen often [2007 update, PDF]
• Vermont student sues Burger King over indelicate object found in his sandwich; one wonders whether he’s ruled out it being a latex finger cot, sometimes used by bakery workers [AP/FoxNews.com]
• Good discussions of “human rights commission” complaints against columnist Mark Steyn in Canada [Volokh, David Warren and again @ RCP, Dan Gardner; for a contrasting view, see Wise Law Blog]
• Having trousered $60-odd million in fees suing Microsoft in Minnesota and Iowa antitrust cases, Zelle Hofmann now upset after judge says $4 million in fees should suffice for Wisconsin me-too action [Star-Tribune, PheistyBlog]
• Australian rail operator will appeal order to pay $A600,000 to man who illegally jumped tracks, spat at ticket inspectors, hurt himself fleeing when detained [Herald Sun]
• Lawyers’ fees in Kia brake class action (Oct. 29, Oct. 30) defended by judge who assails honesty of chief defense witness [Legal Intelligencer]
• Who deserves credit for founding Facebook? Question is headed for court [02138 mag]
• Yes, jury verdicts do sometimes bankrupt defendants, as did this $8 million class action award against a Kansas City car dealer [KC Star, KC Business Journal]
• Dispute over Burt Neuborne’s Holocaust fees is finally over, he’ll get $3.1 million [NY Sun]
• So long as we’re only fifty votes behind in the race for this “best general legal blog” honor, we’re going to keep nagging you to vote for Overlawyered [if you haven't already]

Milwaukee cop Robert Henry was fired after being caught on tape in 2002 roughing up an arrested suspect. A federal judge has now ruled against Henry’s lawsuit over his firing. However, that doesn’t mean taxpayers are off the hook for the wayward officer’s continued support: “Henry was not criminally charged, and he later successfully filed for lifelong disability payments after he said he suffered stress for being fired. He remains on disability leave from MPD.” (John Diedrich, “Proof & Hearsay” (Journal-Sentinel blog), Nov. 1).

In which the attractive principle behind the line-item veto goes deeply, seriously wrong (Althouse, Oct. 30). One commenter says that the law was previously changed to prevent letter-by-letter vetoes but that the legislature did not ban the practice for numerals.

Wisconsin blogger Jessica McBride reports that the Wisconsin Supreme Court, by virtue of a 3-3 decision, affirmed a lower court ruling on the ludicrous $17 million Heikkinen verdict (Feb. 21 and Feb. 27, 2005). Point of Law has previously documented the travails of the 4-3 liberal majority that has become one of the most activist state supreme courts in America.

• Picture of farmer with goose appears on greeting card, he wants $7.5 million [Roanoke Times; earlier]


• More class actions filed over Apple iPhone [Ars Technica on roaming and battery claims, O'Grady's PowerPage, iPhoneWorld; earlier]


• L.A. Times quotes attorney Stephen Yagman on prison overcrowding, but forgets to mention that he was lately convicted of thirteen felonies [Patterico]


• Bad idea watch: compulsory national service [Somin @ Volokh]


• Doing well representing the little guy: Gerry Spence lists his Wyoming residence for sale at $35 million [WSJ/Chicago Daily Herald]


• “Appropriate”, not “perfect”, justice needed: “We simply have to stop killing litigants with kindness,” says chief judge of Australia’s largest state [The Australian]


• Toddler killed after wandering into heavy traffic, trucker should have been more on guard against such a thing happening [Salt Lake Tribune]


• Pennsylvania pro se litigant sues Google, says it spells his social security number upside down [Ambrogi] More: Coyote says “Up next, the owner of Social Security number 71077345 sues Shell Oil for the same reason.”


• Once billed as “King of Torts”, Miami asbestos lawyer faces fifteen years behind bars for stealing $13 million from clients [Sun-Sentinel]


• Groom sues bride, saying she took the ring and presents and never got the wedding paperwork straightened out leaving them legally unmarried [ClickOnDetroit]


• Surgical resident on the hook for $23 million in Wisconsin case; she was the only one of the docs involved not covered by damage limits [Journal Sentinel via KevinMD]

• Pearson Pants update: dry cleaners offered to drop their fee demand if Pearson would end case, but he declined [Marc Fisher, other Washington Post coverage, Beldar]
• Check your oil, ma’am? On second thought, if it’s going to get us sued, never mind [Reiland/Pittsburgh Tribune-Review]
• “Surprising and uncommon” resolution of med-mal case: Nebraska Methodist Health System admits error, cooperates with family on video memorializing victim and educating other hospitals about aortic dissection [Omaha World-Herald, Chamber reprint]
• Heated email exchange between perennial Overlawyered favorite Jack Thompson and Take Two game company exec [Ambrogi]
• Putting her image on a Hallmark card? Now that’s degrading and exploitative enough to make Paris Hilton want to sue [K.C. Star]
• Uncle sues nephew over season tickets to Chicago Bears at 40-yard line [Crain's Chicago Business]
• Hurt her teeth on McDonald’s cherry pie, hurt her teeth on cheeseburger soon after — and what’s this about forged dental-work receipts? [Seattle Times]
• Wisconsin snuff users may soon be rolling in coupons following settlement of antitrust class action, lawyers to pocket $17 million [AP/Green Bay Press-Gazette]
• New at Point of Law: fiasco of UC Irvine’s withdrawn offer to Chemerinsky; judge says $500/hr is enough for lawyers in Northwest bankruptcy; law firm advertises for heart attack victims to sue over lack of defibrillators in public places; Astroturf detected in Washington-state insurance-suit referendum fight; NY Times takes skeptical look at Mount Sinai’s Selikoff Center; Jerry Brown sure fooled us, says San Diego paper; Ted expands his empire; and much more;
• A topic on which we’ve had a lot to say over the years — to what extent does the Americans with Disabilities Act apply to websites? — may be heating up again [Corporate Counsel]
• Thanks for the incoming links from, among others, Instapundit (on Ted’s reclining-car-seat post, which has drawn a bodacious number of comments), Patterico (on Jarek Molski), Bainbridge (on animal welfare laws), and Adam Smith Institute (on lawyers suing each other: “Such a pity that only one side can lose”.)

• More critics pile onto new Medicare “we won’t pay for errors” policy [Orac, Chris Rangel, Universal Health, MedPundit; earlier; plus KevinMD]


• Wisconsin lawmaker wants to address perceived lawyer oversupply by cutting funding to the state’s law school [NLJ]


• What would great authors of Britain’s past have thought of pub smoking ban? [AN Wilson, Telegraph; one response; more]


• As Texas trial lawyer Mikal Watts gears up Senate run, his GOP critics turn for ammunition to a certain website [ChronBlog via Half Empty]


• Holder in due course? Pa. man has left fragrant ethical trail buying up bounced checks and demanding their payment in court [NJLJ]


• One reason for slow adoption of electronic medical records: docs’ fear of wider malpractice exposure [Medical Economics via KevinMD]


• “He knows there is irony in a criminal defense attorney being driven out of the city because of crime” [Baltimore Sun]


• More evidence that Endangered Species Act perversely encourages landowners to make their habitat inhospitable [Adler @ Volokh]


• If you recognize one of your hospital patients as a wanted fugitive, don’t let HIPAA keep you from calling cops [MedRants first, second post]


• Teenager may face year in jail for recording 20-second movie clip [Wired "Gadget Lab" via Harsanyi and Reynolds]


• Behind a judge’s order that GM pay $1.2 billion over a drunk driver’s crash [eight years ago at Overlawyered; case's eventual settlement]

The Federalist Society has posted a podcast of their recent panel:

Recently there has been growing discussion concerning the appropriate role of state Attorneys General. Some argue that state AGs have overstepped their boundary by prosecuting cases and negotiating settlements that have had extraterritorial effects, and sometimes even national effects. Others argue that state AGs are simply filling a vacuum left by the failure of others (for example, federal agencies) to attend to these issues. In light of this debate, the Federalist Society hosted a panel in Washington, D.C. featuring several state Attorneys General who discussed the proper role of state AGs.

Panelists included:

* Hon. Bob McDonnell, Attorney General of Virginia
* Hon. Donald Stenberg, former Attorney General of Nebraska; Erickson & Sederstrom
* Hon. John Suthers, Attorney General of Colorado
* Hon. J. B. Van Hollen, Attorney General of Wisconsin
* Ms. Peggy Little, Little & Little; Director, Federalist Society Pro Bono Center, Moderator

Laurie Lin reports on one way to cut down on lawsuits, being mooted in Wisconsin — close down the University of Wisconsin’s law school.

It is to laugh, no? And yet, considering that it is a publicly-funded institution, the “need” for more legal education, in a situation of glut, is a reasonable factor for the legislature that does the funding to consider, isn’t it?

Thanks to Christian Schneider of the Wisconsin Policy Research Institute for tending the fires over the past week. Check in to the WPRI blog and Atomic Trousers to read more of his work. We’ll be welcoming more guestbloggers as the summer continues.

A Massachusetts inmate serving life in prison for murder is in court demanding the state pay for a sex-change operation:

The case of Michelle — formerly Robert — Kosilek is being closely watched across the country by advocates for other inmates who want to undergo a sex change. Transgender inmates in other states have sued prison officials, and not one has succeeded in persuading a judge to order a sex-change operation.

[...]

Kosilek, 58, was convicted of strangling his wife in 1990. He claimed he killed her in self-defense after she spilled boiling tea on his genitals.

Robert Kosilek legally changed his name to Michelle in 1993, and has sued the Correction Department twice, arguing that its refusal to allow a sex-change operation violates the Eighth Amendment protection against cruel and unusual punishment.

Naturally, expert witnesses are lining up to defend Kosilek, and a law firm is representing him pro bono:

Two other doctors retained and paid for by the department’s outside health provider, the University of Massachusetts Correctional Health Program, at a cost of just under $19,000 said they believe the surgery is medically necessary for Kosilek. Two other doctors who work for the health provider agreed with that.

In addition, two psychiatrists who testified for Kosilek recommended the surgery. A Boston law firm representing Kosilek for free paid for those experts but would not disclose the cost.

Aside from the propriety of taxpayers paying for a sex change operation (which Kosilek may or may not have been able to pay for himself had he not been in prison), corrections officials are correct that having a (now) woman in a male prison could pose significant problems. It is almost a given that should the operation be performed, Kosilek would petition to be moved to a women’s prison to protect his own safety.

Also, note the interesting correction at the bottom of the story:

(This version CORRECTS `himself’ to `herself.’)

Kosilek hasn’t had the sex change yet, so technically he is still a man - apparently the newspaper thought so, too. It would be interesting to find out who compelled them to change the story to portray Kosilek as a female - and in the process perhaps avoid their own lawsuit.

As noted in the story, Wisconsin went through a similar situation in 2004 when inmate Scott (now Donna Dawn)Konitzer was denied genital gender reassignment surgery by the Department of Corrections and sued the state. Department policy had been to provide hormone therapy to those who had been receiving it for a year before their incarceration, but surgery was not provided as an option. As Kosilek now has, Konitzer claimed denial of the procedure constituted “cruel and unusual punishment” in violation of the Eighth Amendment to the U.S. Constitution.

As a result of Konitzer’s lawsuit, the Wisconsin Legislature actually passed into law a ban on both hormone therapy and gender reassignment surgery. Naturally, that new law has been challenged in U.S. District Court in Milwaukee.

Yesterday’s U.S. Supreme Court decision in FEC v. Wisconsin Right to Life is of special importance to those of us in Wisconsin, since we have watched the case unfold before our eyes since its inception. As you’ve probably heard by now, the Court, in a 5-4 vote, struck down a portion of the McCain-Feingold campaign finance law which prohibited so-called “issue advocacy” by unregistered groups in a period of 60 days before a general election. Wisconsin Right to Life had run advertisements critical of Senators Russ Feingold and Herb Kohl for their perceived role in holding up judicial appointments, but these ads were deemed to be illegal under McCain-Feingold, despite not advocating for the electoral defeat of either. Yesterday’s decision upheld WRTL’s right to run the ads, as the Court determined they were not “express advocacy.”

The culture of speech restriction with regard to campaigns has been prevalent in Wisconsin for some time, and produces some fairly odd applications of the law. This was demonstrated during last November’s elections, when the Wisconsin Democracy Campaign (a pro-campaign finance reform group) actually filed a complaint to bar a Catholic diocese from urging its parishoners to support a constitutional amendment to ban gay marriage. (Church Accused of Illegal Lobbying, Madison Capital Times, Oct. 18, 2006) At the same time they were attempting to use state law to block the Catholic Church’s right to support the constitutional amendment, the WDC was actually publicly lobbying against the amendment - yet they didn’t see their own activities as “express advocacy.”

So while it is clear yesterday’s decision represented a marginal victory for free speech rights at the federal level, there are steps states can take to ensure political speech isn’t muzzled come election time. When churches break the law by teaching their beliefs, it should alert states to dangerous path campaign finance restrictions are taking us.

It appears that I have won the Guestblogger Pageant (despite falling down and being booed by angry Mexicans), so here’s a little bit about me. My name is Christian Schneider, and I work for the Wisconsin Policy Research Institute here in lovely Madison, Wisconsin. I run the WPRI blog, a little personal project called Atomic Trousers, and as a former legislative staffer, I blogged pseudonymously as Dennis York (a blog that could generously be described as humorous). I am originally from Alexandria, VA, and I have a master’s degree in political science from the prestigious Marquette University in Milwaukee (which means I am qualified to read the newspaper). I also occasionally contribute commentaries to the show “Here and Now” on Wisconsin Public Television.

While I am not an attorney, I am a long time fan of Overlawyered.com. Plus, there’s a reasonable chance Jessica Alba will be filing a restraining order against me sometime soon, so I thought it might be a good idea to familiarize myself with the legal community.

Here are a couple past posts that people seemed to find moderately inoffensive:

Scientists to Harvest Seniors for their Coupons
Keep Your Laws Out of My Pants (and a Follow-Up)
When Religions Lobby

So there’s my resume. References available upon request.

All Point of Law edition:

• I discuss Professor Charles Silver’s latest foray on Bizarro-Overlawyered. Silver and his coauthors are doing legitimate empirical work, but I don’t understand why he keeps making public statements that the published versions of his papers can’t support, and I especially don’t understand why he does that at the same time he’s criticizing the entire reform movement for any given politician’s oversimplified sound-bite. [Point of Law]
• New Jersey Supreme Court limits benefits of forum shopping, with potentially fatal implications for pending $27 billion class action against Merck. [Point of Law; Beck/Herrmann]
• The PRI study’s $865B figure isn’t perfect, as I earlier noted in a post since interpreted to mean that I “loved it.” [Point of Law; Turkewitz]
• Plaintiffs’ bar attempts to smear next Wisconsin Supreme Court justice Annette Ziegler fail. [WSAW; Point of Law]
• Tax breaks for the plaintiffs’ bar. [Day on Torts; Point of Law]
• Don’t tell David Behar about this paper; it mentions “privity.” [Point of Law]

Yesterday I joined Vicki McKenna on Madison, Wisconsin’s WIBA to discuss Katrina insurance litigation as well as the Supreme Court’s punitive damages rulings. And on Jan. 23 I was a guest on Jim Blasingame’s national “Small Business Advocate“.