Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for 2005

Geoffrey Fieger update

You will recall that Geoffrey Fieger’s modus operandi is to engage in outrageous behavior to get judges thrown off of cases and otherwise accuse judges who rule against him or his clients of misconduct (Nov. 20; Mar. 24). Now, in the aftermath of Hollins v. Jordan (Nov. 20 and links therein), Fieger is attacking an Ohio probate court judge who is daring to try to protect the settlement of the brain-damaged and legally incompetent plaintiff from Fieger’s machinations.

“This is all about intimidation,” [Judge] Corrigan said. He accused the plaintiffs’ out-of-town lawyers of “forum-shopping” to take the case away from him and give it to a Michigan judge more acquiescent to their wishes.

(James F. McCarty, “$30 million verdict spawns new legal battle”, Cleveland Plain-Dealer, Oct. 9). This dispute is over a $1.5 million pretrial settlement with another defendant; the $30 million verdict is also on appeal.

Back in Michigan, Fieger is offering to spend millions of dollars of his own money to run for Michigan Attorney General on the Democratic ticket. (Steven Harmon, “Fieger ready to pour own cash into attorney general fight”, Grand Rapids Press, Oct. 21). Fortunately for the Democratic Party, there doesn’t seem to be a lot of support for the idea. (Kathleen Gray, “Fieger considers running for state attorney general”, Detroit Free Press, Oct. 12). John Engler easily beat Fieger, 62 percent to 38 percent, when Fieger ran for governor in 1998.

The targeting of the incumbent attorney general, Mike Cox, may be related to “an ongoing criminal investigation of a complaint from Secretary of State Terri Lynn Land about alleged filing irregularities on $400,000 of Fieger-financed spending opposing the successful 2004 re-election of Republican Michigan Supreme Court Justice Stephen Markman.” (George Weeks, “Fieger isn’t faking bid for attorney general”, Detroit News, Oct. 13). Fieger has demonstrated his misunderstanding of principles of federal jurisdiction with a federal lawsuit against Cox and Land in an attempt to squelch the campaign finance investigation. (AP, Oct. 13).

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Contesting a will? Watch out

Australia: Two sisters decided to dispute their brother’s favored position in a farm inheritance. Result? “the sisters spent [A]$450,000 in legal fees to get [A]$360,000. And the total cost of battling out the inheritance came to $605,000.” (Vanda Carson, “The lawyers will win”, The Australian, Oct. 21).

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“Ottawa may sue U.S. gun makers”

Raising the question: did we do this during Prohibition to Canada’s whisky distillers, when their products flooded into this country across both land and water borders? And if we didn’t sue, could there be a lesson in that about the need for nations to respect each others’ sovereignty?

Canada is looking into ways to sue U.S. gun manufacturers for the spread of illegal weapons into this country, the Toronto Star has learned….

The policy will also be seen as another shot by Prime Minister Paul Martin’s government across the bow of Canada-U.S. relations.

Government sources told the Star yesterday that Canada will be looking into “every legal option” to stem a tide of crimes involving weapons that make their way into this country illegally from the United States, whether they’re sold through the Internet or smuggled across the border.

That includes possible suits against U.S. manufacturers, launched either in the United States or in this country if the firm has assets here as well, the sources said. Though no precise estimates are available, Toronto police have said repeatedly that almost half the gun crimes committed in Canada involved illegal, U.S. weapons.

(Susan Delacourt and Les Whittington, Toronto Star, Oct. 22 (reg))

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Open season to hack trademark infringers?

Some years back attorneys Ronald Coleman, of Likelihood of Confusion fame, and Matthew W. Carlin, who has represented the interests of Barney, the children’s purple dinosaur, proposed that when other remedies fail intellectual property owners should request court permission to hack the websites of court-order-defying trademark infringers (“Hacker with a White Hat”, reprinted at Coleman Law Firm site). Declan McCullagh (Oct. 17) and Jonathan B. Wilson (Oct. 20) don’t think that’s such a great idea at all, nor do McCullagh’s commenters.

More: Ron Coleman responds to critics here and here.

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“A cult named Sue”

Yes, it’s the Scientologists again (see Apr. 16, 2004; Mar. 25-26, 2002; Mar. 19-20, 2001; May 3, 2000). This time they’re threatening a New Zealand parody site named ScienTOMogy.info, which is thus named in honor of Scientology adherent Tom Cruise (via Matt Welch, Reason “Hit and Run”, Oct. 19, headline and all). More: Ron Coleman, Likelihood of Confusion, Oct. 22.

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More coffee, less crime

Apropos of nothing in particular:

A would-be carjacker got a different kind of jolt from his intended victim’s morning cup of coffee, authorities said.

[…]

But the driver—who had just bought a cup of hot coffee—slammed the car door into the carjacker’s legs, threw the coffee at his neck and face and wrestled him to the ground, Hughes said.

(AP/CNN, Oct. 21) (tip of the Overlawyered cap to A.T.). The AP, of course, must be mistaken: the trial lawyers claim that everyone lowered the temperature of their coffee to a “lower industry standard” to make consumers safer in response to the Liebeck suit, and lukewarm coffee couldn’t possibly be used against a carjacker—unless ATLA wasn’t telling the truth, but that can’t possibly be, right?

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Driving 55: profits before people?

The San Francisco Chronicle publishes an experiment (via Romenesko) recommending that people drive 55 mph on 70 mph-limit highways to save gas. What does this recommendation have to do with product liability? Well, it provides an interesting cost-benefit study. Read on.

1) We’ll leave aside the fact that one can’t do a legitimate comparison of gas savings by driving one way on the first leg of a round trip and the other way on the return leg. I get much better mileage driving into Washington, DC than on my return trip because the first leg is downhill and the second leg is uphill. Let’s just assume that it’s a level trip each way.

2) The author saved 2.1 gallons on a 200-mile drive. At $3/gallon, that’s $6.30 in savings—except it took him an extra 49 minutes to make the drive. Do you really value your time at less than an after-tax $8/hour? (Halve that if you’re driving with a passenger who’s also losing 49 minutes.) The article doesn’t mention the opportunity cost. The financial benefit actually ranges from tiny to negative.

3) The article does mention the safety issue. Getting passed 830 times (several times a minute) versus 94 times has to substantially increase the risk of a collision, especially given the article’s tales of being subjected to tailgating.

4) There’s a social cost externality from driving slow—you’re slowing down the drivers around you (wasting their time), and increasing their risk of a collision.

5) One might protest that there’s a social cost to gasoline usage that’s not reflected in the price of gasoline. But that’s an argument for raising the gas tax (and to stop complaining about alleged “gouging” at the gas pump), rather than for measures that crowd the roads and make driving more inconvenient.

In sum, the Chronicle and the 55 Conservation Project are making a recommendation that doesn’t really save that much (if anything) in the way of money, can substantially inconvenience others, and, most of all, make the roads more dangerous.

What’s the liability reform tie-in? Well, note that automobile companies have been hit with millions of dollars of product liability verdicts for design decisions less risky and more cost-saving than what the Chronicle and 55 Conservation Project are proposing here. (E.g., Mar. 21, Mar. 7, Dec. 21). And (as should be the case) no one thinks that these two institutions, or the drivers that unilaterally adopt their recommendation to needlessly drive slower than the prevailing traffic, should be held liable for the foreseeable consequences of the recommendation or its adoption.

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Jack Thompson update

We’ve previously documented the escapades of attorney Jack Thompson, who’s led a number of lawsuits against the video game industry seeking to blame violent crimes on them (Feb. 19, Sep. 26, 2003, Apr. 3-4, 2002), once even taking the time to write us a memorable letter.

Thompson’s latest publicity stunt was to propose that someone create a video game depicting a “victim” of video-game violence violently going after video-game executives, even offering $10,000 to the charity of the choice of the designer. Unfortunately for him, someone actually followed up and did it, and then asked to collect; Thompson reneged, and then threatened litigation against a net cartoon (NSFW language) that satirized him. Enough readers of the strip have complained to the Florida Bar Association that they claim to be investigating, though I personally doubt anything will come of it. Ars Technica (via Radosh) is more optimistic, and has more details.

Update: I missed a more recent and entertaining development: Thompson is apparently threatening suit against the Florida Bar if it takes action on the ethics complaints.

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Responses to comments on yesterday’s McDonald’s coffee posts

Several comments on yesterday’s post merit responses.

1. One commenter invokes the Ford Pinto case, which is interesting because that’s perhaps the most famous anti-reform urban legend of all. He mistakenly says that Ford’s problem there was undervaluing human life (though the figure in the memo merely repeated the NHTSA number), but, in reality, the plaintiffs sought and obtained punitive damages because Ford performed a cost-benefit calculation at all. Any manufacturer caught performing the cost-benefit calculation that the commenter believes reflects the tort system operating at its most efficient is going to be accused of “putting profits before people” and undervaluing human life, and is at severe risk of being hit with punitive damages unless the judge or jury is unusually economically literate.

2. I’m not saying the court should have thrown the case out because of the factual dispute. The jury made the wrong decision on the facts, but the judge made the wrong decision on the law: see McMahon v. Bunn-O-Matic and the dozen or so cases throwing identical theories out.

3. I agree that it’s not enough to look solely at the costs of the tort system, and that one must look at the benefits also. I don’t oppose the tort system as a whole, but there are certainly problems with the tort system that can be improved to increase the benefits while decreasing the costs. The McDonald’s case illustrates several of these problems: (a) bogus expert testimony; (b) the distorting effect of punitive damages, especially when punitive damages in a products liability case is based on the defendants’ sales, rather than the defendants’ conduct; (c) the erosion of the concept of proximate cause from the tort system; and (d) the erosion of the concept of personal responsibility from the tort system; (e) the backwards-looking “failure to warn” cause of action; (f) the system’s unscientific rejection of concepts of statistical significance.

This would be bad enough if the case was simply an outlier, a case where bad luck, a bad judge, a bad jury, and defense mistakes combined to create a wrong result, but ATLA and law professors are holding up this case as a good result, and there’s a generation of law students who mistakenly think that this is what the tort system should aspire to.

4. I mentioned Snopes.com in the post; they appear to have taken down their original McDonald’s coffee page. I’ve changed the link from the main Snopes page to a different post discussing the “Stella Awards” (which we debunked August 27, 2001). There, Snopes.com repeats the claim that the McDonald’s coffee lawsuit was legitimate, and furthers the urban legend that there’s a sinister force behind the Stella Awards—a curious claim, given that the Mikkelsons’ experience with urban legends has surely taught them that no right-wing conspiracy is needed to result in the spreading of a good yarn that isn’t true. (See also Aug. 14.) In contrast, ATLA affirmatively promotes urban legends about the Ford Pinto and McDonald’s coffee case on their page.

5. Side note about an irony of the Ford Pinto case: the litigation was sold to the American public as a godsend because Pintos were so dangerous that their gas tanks killed a thousand or more. Gary Schwartz added up the numbers, and discovered that only 28 people died in Ford Pinto fuel-fed fires—a rate lower than many other small cars. ATLA shamelessly uses the new number to exclaim that current product manufacturing snafus are “worse than the infamous Ford Pinto,” which is, of course, infamous only because of the successful propaganda of the trial bar.

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