Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for December, 2005

Don’t take that client!

Norm Pattis at Crime and Federalism (Nov. 21) describes a temptation felt by many trial lawyers during “the periodic lull in cases of merit”: taking on the cause of a vengeful, deluded or disturbed complainant:

You know the type. The injured, angry, pissed off, ornery cuss of a client who has been waiting, hoping, praying for a lifetime for someone to commit a tort, any tort will do, against them. Armed with this tort, this anger addicted fiend of a plaintiff will demand the scorching of any Earth within one thousand miles of their rubbed raw hangnail.

Will such a client find a lawyer willing to take his case? Very possibly he might:

Each year the bar belches forth a new class of lawyers; we add them faster than they die off. Lawyers need cases or controversies to survive. As the number of lawyers grows, plaintiffs’ lawyers reach ever deeper into the cesspool of human need to find clients. Is it any wonder that the courts are filled to overflowing with litigation that would better be treated with Prozac, Thorazine or some other radical therapy?

Lawyers should turn down such clients, Pattis says, and society should add its own discouragement:

I am a plaintiff’s lawyer. I am a successful plaintiff’s lawyer. But, perhaps this is too much to assert — I am an honest plaintiff’s lawyer. I favor as a matter of policy liberal rules requiring a plaintiff to pay sanctions for a claim brought without merit. A plaintiff who imposes unneeded expense on a defendant should reimburse the defendant.

And he follows that thought up with several other policy recommendations: “Liberalize the use of independent medical examinations for plaintiffs claiming emotional distress”, “Expand Rule 11 type sanctions on lawyers”, and “Make it easier for lawyers to withdraw when they discover that the client’s claims lack merit”. Even if you don’t usually follow the links in our posts, do it this time and read the whole thing. Update Jan. 8: Pattis responds to colleagues’ criticism.

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Overcriminalization watch: five years for “encouraging” aliens to stay

Yesterday, on a party-line 23-to-15 vote, the Republican-led House Judiciary Committee approved legislation sponsored by its chair, Rep. James Sensenbrenner (R-Wisc.), billed as cracking down on illegal immigration. According to Jacob Sullum, reporting at Reason “Hit and Run” (Dec. 8), the bill as brought up in committee:

would impose a three-year mandatory minimum sentence on anyone who, with an expectation of financial gain, “assists, encourages, directs, or induces” two or more foreigners to illegally reside in the U.S. The penalty rises to five years if the encouragement leads to a crime punishable by more than a year in prison. Families Against Mandatory Minimums notes that “the five-year mandatory minimum will nearly always apply because the bill would also increase the maximum penalty for illegal entry to a year and a day and provides mandatory minimum penalties of one to 10 years for those who reenter the country following deportation.”

It appears from the bill’s text (PDF) that the prohibition on “encouraging” or “assisting” illegals to remain in this country is by no means meant to reach only persons who engage in organized long-distance smuggling of aliens; the requisite “expectation of financial gain” from the continued presence of an alien couple might consist (or so it appears) of reaping the benefit of employing one member of the couple in, say, a housekeeping, gardening or home-repair capacity (Judiciary press release, Washington Post).

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Columnist-fest

Because we haven’t done a columnist-fest in a long time:

* “I’m struck by how little attention has been given to one of the biggest problems in America’s judicial system: the enormous cost and creativity-killing pace of ordinary civil cases. … War is what a lawsuit is”. (John Stossel, syndicated/TownHall, Dec. 7).

* For years and years liberal groups have been cheering the federal government’s right to attach burdensome regulatory strings when colleges accept its money. Now, with the Solomon Amendment controversy, they finally get to learn about the other side of the story (Steve Chapman, “When Liberals Oppose Strong Government”, syndicated/Chicago Tribune, Dec. 8).

* “No Couch Potato Left Behind”: George Will on a $3 billion federal program to subsidize owners of obsolete TV sets (“The Inalienable Right To a Remote”, syndicated/Washington Post, Dec. 8).

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Alberta lawmakers: go ahead, sue Mom

“Alberta has become the first province in Canada to enact legislation allowing children to sue their mothers for injuries suffered in the womb. But the law applies only to damage suffered in car accidents.” The idea isn’t really to foment legal strife between infants and their moms, but just to give the family a new way to tap its auto insurance policy, quite possibly with the support and connivance of the mother who will be the ostensibly adverse party in the case:

Jim Rivait, spokesperson for the Insurance Bureau of Canada, says the new law is going to have an impact on insurance premiums right across the country.

“Any time you have an increase in claim costs, it has to flow through to what policy holders pay for auto insurance premiums,” said Rivait.

Not to mention the wear and tear on the principles underlying a legal system if collusive and tactical litigation comes to be winked at. (“New Alberta law will permit some lawsuits against mothers”, CBC/Sympatico-MSN, Dec. 3) (via KevinMD).

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Judge demands freeze on Boston Herald’s assets

Massachusetts Superior Court Judge Ernest B. Murphy, having won a libel judgment of more than $2 million against the Boston Herald, smaller of the city’s two big newspapers, is now demanding that a court order the paper’s assets frozen to guarantee payment of the judgment. (Jonathan Saltzman, “Court is asked to freeze Herald’s assets”, Boston Globe, Nov. 29). Dan Kennedy at Media Nation (Nov. 29) says that the Herald’s original article criticizing Murphy was anything but a model of good journalism.

But free-press advocates ought to be concerned that a sitting judge can have some influence over the Herald’s future — and possibly its very survival — because of reporting that amounted to criticism of how he performed his public duties. That, more than anything, is what the First Amendment was designed to protect.

(via Romenesko). For the chilling effects of libel awards won by judges in Pennsylvania, see Mar. 16, 2004, etc.

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“Lines Are Drawn for Big Suit Over Sodas”

The New York Times finally weighs in on the impending case against Big Soda (see Dec. 5). Maybe it took them longer than expected to get the spin in favor of the suit just right. Prof. Daynard’s role gets somewhat downplayed this time around, the Center for Science in the Public Interest looms larger, and the most priceless bit comes at the end:

One detail yet to be decided is whether the group will seek financial damages. Under Massachusetts’s consumer protection law, successful plaintiffs are entitled to $25 per violation, which could mean $25 for every time a student has purchased a soda in a public high school in Massachusetts over the past four years.

Mr. Gardner said he and the other lawyers realize that damages could run into the billions. “We haven’t decided about this yet,” he said. “We don’t want this to come off looking like a greedy-lawyer lawsuit.”

(Melanie Warner, New York Times, Dec. 7). Comments: Volokh.

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$450K settlement after “ride them hard” remark

Two secretaries will share a settlement of around $450,000 from the Atlantic City, N.J. school district and its insurer after filing sexual-harassment charges. Carol Lee and Jennifer Torres sued following

a comment Assistant Superintendent Thomas J. Kirschling made to them and two others in July 2002. At some point mid-month, Kirschling said “I ride them hard and put them away wet.”

The two secretaries sent him a memo saying they were outraged. He later explained and apologized, according to a subsequent memo.

Kirschling was apparently using a rural idiom that means someone is tired or worked hard. The phrase is taken from the need to cool down a horse after strenuous exercise. Only a mistreated horse is stabled while it is still sweating.

After the women complained, the district assigned an outside attorney to investigate, but that probe inadvertently lapsed….

The school board approved the settlement at a meeting last month, although some members considered the amount excessive. “Board member John Devlin said ‘It’s nuts, though, just for that comment.'” (Derek Harper, “Harassment settlement in A.C. totals $450,000”, Press of Atlantic City, Dec. 2; “A.C. school board settles harassment claim for undisclosed sum”, Dec. 1)(& welcome Ramesh Ponnuru, Cathy Young, Michael Fox, Dave Zincavage, Liberty Belles readers).

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