Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for August, 2005

Eenie Meenie Minie Update

Grace Fuller claims that she suffered two epileptic seizures because a flight attendant used the phrase “Eenie, meenie, minie, mo, pick a seat, we gotta go” to passengers boarding an open-seating flight late; Fuller and her travelling companion, both African-Americans, ascribed racist meaning to the phrase, and sued under a variety of federal and state claims. Some claims were thrown out, and a jury did what a judge should’ve done sooner, and bounced the rest. (Feb. 9, 2004; Jan. 22, 2004 and links therein).

The United States Court of Appeals for the Tenth Circuit affirmed the district court judgment for defendants. After a full trial, and briefing for an appeal, the cost to Southwest Airlines of “Eenie Meenie Minie Moe” was surely in the six digits. But, though the law in questions permit plaintiffs to recover attorneys’ fees if they are successful (surely the only reason an attorney agreed to bring this suit), defendant Southwest Airlines is going to have to swallow the cost of this ridiculous suit. The opinion creates no precedent, so if Sawyer wants to sue someone else for using a nursery rhyme, she can do so in the future. (Sawyer v. Southwest Airlines Co., No. 04-3109 (10th Cir. Aug. 10, 2005) (hat tip to P.N.)).

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Mississippi verdict aftermath

As we reported Friday, a jury in the Magnolia State’s money-for-judges trial acquitted state supreme court justice Oliver Diaz Jr. of all charges, rendered not guilty verdicts on some of the charges against two of the three other defendants, and was unable to agree on verdicts in the other cases. Now Howard Bashman (Aug. 14) rounds up links to the extensive coverage of the case published in recent days in the Jackson Clarion-Ledger and Biloxi Sun-Herald.

More: According to the Sun-Herald account, after agreeing on acquitting Diaz, nine jurors wanted to convict the other defendants of some charges, but three jurors insisted on across-the-board acquittals and would not budge from that position. “What’s wrong with helping a judge?” said juror Shirley Griffin, 64. “They were all friends. It was (Paul Minor’s) money, not the government’s money. It’s his business what he does with it. (Minor) has done a lot of good things. I don’t know him but I know of him, and he’s done a lot of good. And his daddy used to have articles in the paper.” Griffin described the holdouts against conviction as “me and the two white people”, which might be considered an unexpected pattern given that, as the Sun-Herald reported, “The defense team played to a jury of 10 blacks and two whites, frequently bringing up the defendants’ support for civil rights.” And the Clarion-Ledger reports: “The U.S. attorney’s office is uncertain it will retry Minor, former Circuit Judge John Whitfield and former Chancery Judge Wes Teel on charges the jury didn’t reach a verdict on.”

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Smoke a cigarette, spend a year in prison

Baton Rouge, Louisiana: “Smokers beware: Puffing within 25 feet of the door of a publicly used building, a park or in other public spaces could cost you $500 or a year in prison.” (Mike Dunne, “Smoking restriction approved”, The Advocate (Baton Rouge), Aug. 11)(via Gene Healy).

More: Julian Sanchez finds one of the more depressing lines in the story to be: “No smokers stepped forward to talk against the proposal,” and Reason “Hit and Run” readers discuss (Aug. 15).

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“When Lawyers Make Good TV”

The quick sinking from sight of NBC’s reality show “The Law Firm” raises the question why the public so often enjoys watching television shows about law and lawyers (and why this particular show proved an exception). In a piece in Sunday’s New York Times “Week in Review”, reporter Jonathan D. Glater quotes me speculating on the subject. (“The Basics: The Oil Price To Be Scared Of” (scroll to second item), Aug. 14).

Other recent publicity, in both cases subscriber-only: the New York Sun quoted me on Friday in an article about the New York City Health Department’s campaign to persuade restauranteurs and grocery stores to get rid of trans fats (which the city itself continues to feed, in some quantities, to schoolchildren among others) (Jill Gardiner, “War on Trans Fats May Lead to Slippery Slope of Lawsuits”, Aug. 12-14). And BestWire, the news service for the insurance business, quoted me last month on what’s in the offing for the Supreme Court after the Senate confirms John Roberts (R.J. Lehmann, “Supreme Court Nominee’s Stance on Insurance Issues Open To Speculation”, Jul. 25).

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L.A. Times on “lawsuit urban legends”, cont’d

A few further thoughts on the absurdly one-sided Los Angeles Times piece that Ted nails below:

To me, the most outrageous moment in the piece comes early, when GWU lawprof Jonathan Turley is quoted saying of stories like the bogus “Winnebago cruise control” tale: “The people that created these stories did so with remarkable skill,” that skill being aimed at “influencing policy”. Turley thus clearly implies that the silly Winnebago story, or the list of supposed “Stella Awards”, or both, were purposely fabricated by sinister if unknown persons in order to influence policy debates, as opposed to, say, originally being someone’s idea of satire and then being passed along by people who wrongly believed them genuine. LAT reporter Myron Levin permits this very serious charge of deliberate fabrication to hang in the air unexamined and unanswered, which does much to set the tone of his piece.

Yet Prof. Turley, a figure much quoted in the press and frequently on camera, offers precisely zero evidence to back up his serious charge that someone deliberately made up the Winnebago/Stella stories and passed them off as real in hopes of influencing policy. Okay, Prof. Turley, either document that charge, or retract it — or else face a very reasonable suspicion that you yourself are willing to fabricate serious charges for which you lack any evidence.

The Association of Trial Lawyers of America for months has been pushing the theme that the L.A. Times ran with today and it, too, offers not the slightest evidence for its claim that someone purposely fabricated the Winnebago/Stella stories to influence policy debates. ATLA’s floating of that theme (“Updated
February 2005”) can be found here (claiming stories are “designed [emphasis added] to perpetuate the myth that there is a ‘lawsuit crisis’ in America … clearly are part of a massive disinformation campaign designed to undermine Americans’ confidence in our legal system,” etc., etc.) Curiously, for an article that raises concerns about supposed attempts by well-organized groups to influence press coverage, the LAT story never mentions ATLA at all, merely alluding vaguely to trial lawyers in a place or two.

Much of this is of course old news to readers of Overlawyered, which four years ago printed an extensive debunking of the bogus stories that the L.A. Times says legal reformers are eager to circulate. We know through referrer traffic that large numbers of web users continue to land on our entry by searching on strings such as “winnebago + cruise control + lawsuit” (& welcome Patterico, Gail Heriot, Southern California Law Blog readers).

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“Legal Urban Legends Hold Sway”?

The Los Angeles Times begins a series on “tall tales of outrageous jury awards.” The Times mentions in particular the “Winnebago cruise control lawsuit” urban legend, and suggests the tort reform movement is based on false tales like that one. One problem with their theory: Google the Winnebago lawsuit, and you’ll find that the only people vast majority of the leading sites* mentioning that entertaining (but false) story are… people pointing out that it is an urban legend. Jonathan Turley has done more to spread the story through his USA Today article insulting the tort-reform movement than anyone else. There are thousands of true tales of lawsuits on Overlawyered.com equally ludicrous, without the need to resort to the Winnebago story. It’s the litigation lobby that has made the most out of the Winnebago story, because by focusing on the occasional made-up tale, they can avoid addressing the real stories of abuse.

But you wouldn’t know it from the appallingly one-sided Los Angeles Times story. The reporter interviews Jonathan Turley, Joanne Doroshow of the trial-lawyer-friendly Center for Justice & Democracy, and tort reform opponent Theodore Eisenberg of Cornell, before giving Victor Schwartz a sentence at the end. The newspaper even cites the McDonald’s coffee lawsuit as a legitimate result by uncritically repeating the standard ATLA characterization of the litigation. “‘The irony about the McDonald’s case is that it actually, in my view, was a meaningful and worthy lawsuit,’ George Washington University’s Turley said. Yet advocates and pundits have ‘made it synonymous with court abuse.'” (Perhaps because it is court abuse. At least fourteen out of fifteen courts who have heard identical coffee-spill cases have disagreed with Turley.) (Myron Levin, Aug. 14).

[Aug. 17 update: Since I posted this, Google reshuffled its rankings, so now we have the self-referential problem that many of the leading Winnebago lawsuit sites are now referring to this page or the LA Times article. In addition, a couple of pages uncritically repeating the glurge have snuck their way into the top thirty, so it’s more accurate to say that anyone looking up the story on the Internet, where the lawsuit story is supposedly “pervasive,” can’t help but discover that it’s false. Furthermore, the point remains that (1) no serious tort-reform organization is pushing this story (except to refute it, as Overlawyered did four years ago); (2) the Winnebago story is not “widely accepted,” because one has to search through thousands of articles and opinion pieces to find a handful of columnists who made a quickly-retracted claim; (3) the LA Times ignores far more pervasive urban legends that are used to argue against tort reform; and (4) the LA Times is guilty of spreading a one-sided and misleading account of the McDonald’s coffee lawsuit. Other discussion: Aug. 14, Aug. 15, Aug. 16.]

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McDonald’s coffee revisited, August 2005 edition

One of the great urban legends perpetuated by the trial bar is that the ludicrous McDonald’s coffee case (Dec. 10, 2003; Aug. 3, 2004; Aug. 4, 2004, etc.) was somehow worthwhile because McDonald’s “lowered the temperature of its coffee” after it lost the case over Stella Liebeck’s burns. This claim is repeated by hundreds and perhaps thousands of web pages, and at least one tort-law casebook used in law schools.

Not so. Restaurants, much to the relief of consumers, continue to serve coffee hotter than the 140 degrees Stella Liebeck’s attorney thought should be the maximum limit. And, one time in several million, a customer is burnt by the coffee, and some fraction of those result in lawsuits. Latest examples: Rachel Wehrenberg of Florida is suing William F. Ganshirt and McDonald’s for second-degree burns suffered by her daughter when Ganshirt spilled his coffee on six-year-old Victoria’s back after the two collided; and Russian Olga Kuznetsova is suing McDonald’s for second-degree burns she suffered when she spilled coffee on herself while trying to exit the restaurant. The Naples News uncritically repeats attorney Debi Chalik’s false assertion that “industry standard” is “140 degrees.” The Russian lawsuit is over whether the restaurant’s door caused the spill; there does not appear to be a claim that the coffee was unreasonably hot just because it caused burns. Interestingly, there appear to be delays in the Russian case because the expert witness was found to have had contact with the plaintiff’s attorney, a common practice here that is an apparent nyet-nyet in Russia. (Kristen Zambo, “Mother sues McDonald’s claiming coffee burned daughter”, Bonita Daily News, Aug. 6; “Russian woman claims million for a cup of McDonald’s coffee”, Pravda (English), Aug. 9; Andrey Kolesnikov, “Not Fraud, Just Clumsiness”, Kommersant, Jul. 28).

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Jury acquits Diaz, other charges unresolved

A Jackson jury has acquitted Mississippi Supreme Court justice Oliver Diaz Jr. of all four charges against him. “The jurors found attorney Paul Minor [and] former trial judges John Whitfield and Wes Teel innocent of some of the 17 counts and failed to return a verdict on other charges.” (Biloxi Sun-Herald, Aug. 12; Jimmie Gates, “Diaz innocent on all judicial bribery charges; no verdict reached on some charges against three others”, Jackson Clarion-Ledger, Aug. 12). Specifically, it cleared attorney Paul Minor of extortion, bribery and four mail fraud counts, while failing to reach a verdict on racketeering, wire fraud and two bribery counts against him; cleared former judge John Whitfield of wire fraud, while failing to reach a verdict on bribery and mail fraud charges; and failed to reach a verdict on bribery, wire fraud or mail fraud counts against former judge Wes Teel. For our earlier coverage, see Aug. 11, Aug. 7 and links from there.

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