Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for August, 2004

A Lot of Trial Lawyers Supporting Tom Daschle

The recent (Aug. 4) fund-raising visit of Sen. Tom Daschle to Oxford, Mississippi took place “under the political radar … Not even the local daily newspaper in Oxford received advance notice of the event and there was zero news coverage of the event.” Why would the Senate Minority Leader go out of his way to raise money far from South Dakota in one of the nation’s poorest states? Well, Mississippi has some of the nation’s wealthiest trial lawyers, many of whom were in attendance, starting with Oxford’s own Dickie Scruggs, who hosted the event. “The fund-raiser sought checks made payable to ‘A Lot of People Supporting Tom Daschle’ — Daschle’s campaign committee in Washington. Daschle is in an unexpectedly tight race with Republican challenger John Thune. Thune accused Daschle of ‘ducking a debate’ to attend the Oxford fund-raising event. Trial lawyers represent Daschle’s largest group of individual contributors at $1.5 million and his second largest overall sector of givers at $1.7 million during the current cycle.” (Sid Salter, “Daschle luncheon was quiet gathering”, Jackson Clarion-Ledger, Aug. 15)(& welcome readers from Jon Lauck’s Daschle v. Thune blog and from Jason Van Beek at South Dakota Politics, who points to a similar under-the-radar Daschle fundraiser in Jacksonville, Fla. in December hosted by attorney Wayne Hogan). More: the Daschle v. Thune blog reports that the U.S. Chamber of Commerce has run an ad in South Dakota assailing the Senator for blocking liability reform, drawing a testy reaction from his camp (Aug. 20, first and second posts). The first of the two posts quotes Crain’s Insider, Apr. 28:

Daschle will accept an award from the NY Trial Lawyers Assn. at a 4/29 dinner at the Waldorf-Astoria. “He is being honored for his work in opposing tort reform. Political strategist James Carville will serve as the keynote speaker”.

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New at Point of Law

Over at our sister website Point of Law there are new posts galore, including Jim Copland on “light” tobacco suits and Ted Frank on second-guessing of the FDA by liability actions; links to MedPundit on asbestos, Robert Samuelson on the AGs’ global warming lawsuit, David Bernstein on the “Friends” harassment suit, and a not notably favorable review of the new documentary “The Corporation”; and employment law topics ranging from Wal-Mart litigation to Sarbanes-Oxley whistleblowing to the Griggs disparate-impact standard. And, of course, the centerpiece is the featured discussion now underway between Profs. Lester Brickman and Richard Painter on contingency fee reform.

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Canada: dog alimony arrives

“For the first time in Canada, a court has ordered a man to give his ex-wife monthly support payments for their dog. Kenneth Duncan, a truck driver in Edmonton, was told to pay $200 a month in alimony towards the upkeep of Crunchy, a St. Bernard. …Had Crunchy been a child, the monthly payment would have been $691.” (“Albertan ordered to pay ex-wife $200 a month for pet support”, CBC News, Aug. 10). More on pets in divorce: Feb. 17, 2003; May 14-15, 2002.

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Update: Derrick Thomas responsible for own crash

After less than a day of deliberations, jurors rejected a lawsuit claiming that General Motors was responsible for the death of former Kansas City Chiefs linebacker Derrick Thomas, who was speeding on ice without a seat belt at the time of his fatal crash four years ago (see Nov. 28, 2000). The ruling was a setback to attorney Michael Piuze (Jun. 19, 2001, Sept. 24, 2001, Oct. 4-6, 2002), who argued the case for the plaintiffs. (“GM Wins In Derrick Thomas Wrongful Death Trial”, KansasCityChannel.com, Aug. 17).

The family, as we noted in our earlier item on the case, had also sued local ambulance service Emergency Providers Inc. and Liberty Hospital, both of which tried to save Thomas after the accident. The ambulance company settled, as did a Chevrolet dealership. “There was no dispute that the Suburban’s roof was far stronger than federal standards, but the family contended that those standards were insufficient and needed to be changed. … Almost whispering to the jury, [Piuze] asked them for from $75 million to more than $100 million in damages, saying he did not want to put an upper limit on it.” We’ll bet he didn’t (Joe Lambe, San Jose Mercury News, Aug. 17).

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Contingency fee discussion begins today at PointOfLaw.com

Two of the nation’s most prominent experts on the ethics of contingency fees, Prof. Lester Brickman of Cardozo School of Law and Prof. Richard Painter of the University of Illinois College of Law, are the guests in the second monthly “Featured Discussion” at Point Of Law, which gets started later today. Jim Copland sets the stage here and David Giacalone, whose site is another key resource for those interested in the ethics of fees, explains why you should care. Update: discussion has started.

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Streaming content on the web? Pay up

Acacia Research Corporation, “an obscure but well-financed company in Newport Beach, Calif.,” has assembled a portfolio of broadly worded patents that it claims entitle it to licensing fees from many if not all entities that provide streaming audio and video over the Web. It has sent out demand letters to a wide variety of recipients including news organizations and colleges both large and small. “Johns Hopkins University received a letter last year from Acacia, which asked for what would amount to 2 percent of the university’s revenues.” In June it sued nine cable and satellite companies.

Critics say Acacia has no interest in manufacturing things, just in asserting legal claims. “Acacia appears to be the first publicly traded company whose sole business is the licensing of patents. ‘They are not a technology company; they are just a company full of lawyers,’ said Dan Rayburn, executive vice president of StreamingMedia.com, a Web site and industry association. ‘They acquire patents and then sue.'” Defenders, including some not employed by Acacia, say its patents appear solid and that it legitimately purchased enforcement rights from original inventors. “Last week, the United States Court of Appeals for the Federal Circuit in Washington, the nation’s highest patent court, upheld a ruling that [television manufacturers Sony, Sharp and Toshiba] do not infringe the V-chip patent and thus owe Acacia no royalties. The companies that have already paid Acacia $26 million in V-chip royalties, however, will receive no refund.” (Teresa Riordan, “Internet Patent Claims Stir Concern”, New York Times, Aug. 16; Daniel Terdiman, “EFF Publishes Patent Hit List”, Wired News, Jun. 30). Update: Feb. 18, 2007 (Acacia has prospered through licensing deals, though it hasn’t yet faced its toughest courtroom challenges).

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Not the DUI’s fault?

On June 26, 2002, Reno policeman Mike Scofield was heading to the scene of an accident at a high rate of speed, but didn’t turn on his motorcycle siren. Anna Marie Jackson was pulling out of an office park driveway to make a left turn, and paused in the middle of the street in Scofield’s path; Scofield, driving in the left lane, hit her SUV, and was killed instantly. Jackson was eventually convicted of a felony for causing a fatal crash while driving with marijuana in her system.

So the widow, already receiving $1.3 million in workers compensation, sued… the office park, claiming that untrimmed trees caused the accident, though a photo of the view showed no obstruction. Her lawyer even asked for punitive damages. A jury didn’t buy it, voting 7-1 against the widow. (Jaclyn O’Malley, “Officer?s widow loses lawsuit”, Reno Gazette-Journal, Aug. 13; Martha Bellisle, “Scofield trial nearing end”, Reno Gazette-Journal, Aug. 12; Martha Bellisle, “Civil trial begins in Scofield case”, Reno Gazette-Journal, Jul. 21; Reno press release, Sep. 26, 2002). Anna Marie Jackson is appealing her conviction; sentencing is set for September 10, where she faces two to twenty years. (Jaclyn O’Malley, “Jackson given OK to marry before sentencing in cop’s death”, Reno Gazette-Journal, Apr. 30).

Another driver in a drunken driving death fared better. Robert Curry, who had three previous drunken driving convictions, had had four vodkas and a blood-alcohol level of at least .217 when he drove his jeep over a center line and struck Robert Strehlow’s motorcycle, killing him. But Curry claimed he was suffering from post-traumatic stress disorder from his service in Vietnam that caused him to drink. Curry singled out an event in 1971 where he claimed his plane had been shot down, but the commander of his company testified the incident never happened. Moreover, for the year while he was in jail following the accident before he made bail, he didn’t seek counseling. Nevertheless, a Wisconsin jury found him not guilty of homicide by reason of mental disorder. Curry will now undergo a psychiatric evaluation and will be released to outpatient treatment if he is not a “threat to the public.” (Tom Daykin, “Jury acquits veteran haunted by memories”, Milwaukee Journal-Sentinel, Aug. 12; Terri Pederson, “Curry: Post traumatic stress disorder led to deadly drunken driving collision”, Daily Citizen, Aug. 6; Tom Daykin, “Man’s stories of Vietnam stress questioned”, Milwaukee Journal-Sentinel, Mar. 14; Tom Daykin, “With company on upswing, fatal collision brings man’s world crashing down”, Milwaukee Journal-Sentinel, Oct. 25).

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Edwards and jury selection

The Washington Times does some reporting on John Edwards’s trial practice in North Carolina. (“Edwards’ malpractice suits leave bitter taste”, Aug. 16). Reporter Charles Hurt talks to local doctors about Edwards’ cerebral palsy cases and also relates the following story about the role of jury selection in one of the future senator’s prominent cases:

“In 1991 [in Wake County], he won $2.2 million for the estate of a woman who hanged herself in a hospital after being removed from suicide watch. … During jury selection, Mr. Edwards asked potential jurors whether they could hold a doctor responsible for the suicide of their patients.

“I got a lot of speeches from potential jurors who said they did not understand how that doctor could be responsible,” Mr. Edwards recalled in an interview shortly after the trial. Those persons were excluded from the jury.

The article doesn’t say whether Mr. Edwards had to use up his peremptory challenges against the skeptical jurors or was able to get them purged for cause. Either way, it’s a reminder of one way the political process is both more open to diversity and more responsive to public opinion than the trial process: you can’t eject citizens from the voter pool just for holding the wrong sorts of views.

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Fairy shrimp v. people

A little-remarked section of the 2004 National Defense Authorization Act amended the Endangered Species Act to require federal agencies to consider impact on national security before designating land as a “critical habitat.” Thus, the Fish & Wildlife Services’ new critical habitat designation for the fairy shrimp–inch-long crustaceans that live in “vernal pools” (i.e., mud puddles)–no longer includes over 3000 acres of Camp Pendleton, which had suffered tortuous restrictions on military training under the old version of the law. (“Habitat plan includes land in county”, San Diego Union-Tribune, Apr. 29; Mark Mahoney, “Environmental Update”, Spring 2004; Darren Mortenson, “Pendleton and the environment – Marines seek sweeping exemptions from laws”, North County Times, Oct. 16, 2003; Joseph A. D’Agostino, “Endangered Species Envelop Marines in California”, Human Events Online, Feb. 24, 2003; Bill Horn press release, Jun. 24, 2002; Suzanne Struglinski, Greenwire, “Marine Corps claims species impede training at Calif. base”, undated).

Not so lucky Los Angeles International Airport, where 108 acres have been designated a critical habitat–even though the only shrimp found there have been non-hatched eggs, and even though letting standing water on the airport grounds creates an ecosystem that attracts birds, which in turn endanger airplanes. (Jennifer Oldham, “Shrimp Pose Big Problem for LAX”, LA Times, Aug. 15; Professor Bainbridge blog, Aug. 15). The LA Times uncritically quotes FWS officials as saying they had “no choice” because of a federal court order, but in fact the order (Building Industry Legal Defense Foundation v. Norton, 231 F. Supp. 100 (D.D.C. 2002)) merely required the agency to create a critical habitat. Indeed, the order was issued because a previous FWS designation failed to adequately evaluate the economic impact, as the law required. More litigation is likely.

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Latest newsletter

The latest installment of our free periodic newsletter went out this afternoon to its c. 2300 subscribers, covering the last couple of weeks’ worth of postings in telegraphic, even punchy style. It’s a great way to keep up with items you may have missed; when you’re through, pass on the email to a friend or three to let them know about the site. Sign up today, right here.

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