Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for April, 2006

TV anchor claims right to host evangelical show on side

Frank Turner, a 5 p.m. anchor for WXYZ-TV in Detroit, has filed an Equal Employment Opportunity Commission complaint against his employer “for refusing him permission to host an evangelical radio program in his spare time,” thus violating his right to religious accommodation. The station disagrees:

Station officials, while not wanting to comment on Turner’s case directly, say they have exclusive contracts with their on-air talent and never allow anchors or others to work on competing broadcast outlets.

“We spend millions of dollars a year promoting our on-air talent and we want to have them working exclusively for Channel 7,” said Grace Gilchrist, the station’s vice president and general manager.

(Paul Egan, “TV anchor’s choice: God or Ch. 7 job”, Detroit News, Mar. 31)(via Romenesko).

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Larry Flynt, hero?

[Joe] Escalante, a devout Catholic who says he is no fan of p0rn, knew going in that his show’s name, “Barely Legal Radio,” might run into some copyright issues with Flynt’s Barely Legal brand of adult magazines and videos. But Flynt did not challenge the show’s application for a trademark.

“I heard from some people inside that [Flynt] didn’t think there was any confusion,” Escalante says. “If this is true, he’s the only guy I’ve ever heard of whose response is ‘Why would I sue these people?’ That sort of makes him a hero of the ‘Barely Legal’ show. You never hear something like that. In this town? Usually you’d at least get a letter.”

(Hank Stuever, “The DJ With the JD”, Washington Post, Apr. 10).

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Resisting a mass ADA filer

Businesspeople in rural Alpine, Calif., are trying to organize for self-protection against San Diego County attorney Theodore Pinnock, who’s filed at least thirty disabled-rights complaints against enterprises in the town. “Last year, he sent 67 letters to businesses in the historic town of Julian, alleging violations of ADA accessibility requirements. At that time, he demanded between $2,500 and $4,000 in attorneys fees from each of the businesses.” (Jennifer Morse Roback, “Standing up to the disability police”, syndicated/TownHall.com, Apr. 10). More on California ADA filing mills: Mar. 18, May 31, and Jul. 12, 2005, among many others.

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Thanks and Adieu

My humble thanks to Walter and Ted for giving me the opportunity to contribute to Overlawyered. It was a pleasure and an honor. I shall now return to my role as regular reader and commenter under the blogonym Wavemaker.

“Caution: that vehicle collision may not be an accident”

The L.A. Times tackles a subject often treated in this space (Nov. 29, etc.): organized auto-crash fraud, which is largely premised on the chance of bringing bogus liability claims. According to the National Insurance Crime Bureau, Los Angeles is second only to Miami in the volume of such fraud. “Some organized auto fraud rings are so complex they involve hundreds of willing participants, including unscrupulous lawyers, doctors, chiropractors, auto shops, tow truck operators, ambulance drivers, police officers and insurance company employees, according to NICB investigations.” (Jeanne Wright, L.A. Times, Mar. 29).

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Math test improper for police applicants

Republicans and Democrats come and go in the U.S. Department of Justice, but “disparate-impact” theory remains alive and well, as in the case of a new consent decree summarized by a correspondent of NRO’s John Derbyshire (Apr. 4):

“In February, the Justice Department sent a letter to Virginia Beach, concluding that the Beach Police Department has ‘engaged in a pattern or practice of discrimination’ against black and Hispanics applicants.

“The only evidence cited were results of a math exam given to all police recruits. It showed a wide gap between the passing rates for white applicants and the passing rates for black and Hispanics.

“About 85 percent of white applicants passed the math test from 2002 to mid-2005, compared with 59 percent of blacks and 66 percent of Hispanics.”

More details from the article in question (Duane Bourne, “Virginia Beach agrees to change the way it scores police math exams”, The Virginian-Pilot, Apr. 3):

The Justice Department questioned whether math is relevant to the daily duties of a police officer. The city agreed to eliminate the 70 percent cutoff score for the math part of the test….

At least one city official, Councilwoman Reba McClanan, said she does not agree with the settlement.

“One of the things that’s insulting about it is they’re telling us we don’t have a right to insist on certain standards,” McClanan said. “My feeling was we should hang in there. We want fairness and we want as many minorities working for our departments as possible, but we also want them to meet certain standards.”
…

The city will also pay up to $160,000 to applicants who flunked the old standards.

P.S. At Workplace ProfBlog, Paul Secunda spells out something left implicit in the above summary: the Justice Department’s actions are a fairly straightforward application of the current state of “disparate-impact” law; if you see nothing amiss with the present state of that branch of the law, you may see nothing amiss with the outcome (Apr. 10).

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“Wrongful birth” roundup

Stacy Dow, of Perth, Scotland, is suing a hospital over the birth of her healthy daughter Jayde. Dow had been given an abortion at her request but unbeknownst to both her and the doctors she had been pregnant with twins, one of whom remained unharmed after the procedure. Dow told a court she suffered physical pain, distress and anxiety from the resulting pregnancy and Caesarean delivery; she also wants money for the cost of raising the girl to adulthood. (Sarah Womack, “Mother sues for birth of ‘aborted’ twin”, Telegraph, Mar. 21)(via KevinMD). The New York Times Magazine caused a stir last month with an article about a family that sued doctors over failure to recommend amniocentesis whose results would have led them to decide to abort their handicapped child (Elizabeth Weil, “A Wrongful Birth?”, Mar. 12). Ann Althouse notes an AP story reporting that there are waiting lists of parents interested in adopting Down’s Syndrome children (Mar. 10). And in the Dec. 2004 Journal of Legal Education, Gonzaga lawprof David K. DeWolf relates an extraordinary story about what happened one year when he assigned his students the wrongful-birth/wrongful-life case of Harbeson v. Parke-Davis, decided by the Washington Supreme Court in 1983 (via Childs). More on wrongful-birth suits: Mar. 4, etc.

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How Joe Jamail conducts a deposition

Dignity of the profession dept.: this YouTube video of the famed Texas lawyer and UT benefactor in action is making the rounds (warning: offensive everything). It’s discussed by BrainWidth, Froomkin, Childs, Hurt, Kirkendall, Caron, Metafilter, etc. One of those present The man in the chair is named Edward Carstarphen. [note: a commenter says we erred in initially reporting that Carstarphen was the witness being deposed; see also David Stone, Apr. 11]. For more on Mr. Jamail’s record as a paladin of civility, see Apr. 19, 2000 (“gag a maggot off a meat wagon”). Update: link changed to working YouTube location, see Jan. 9, 2007.

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“Please don’t feed the trial lawyers”

I’ve long said that attorneys upset that their profession is held up to ridicule would have much less of a problem if attorneys were more concerned about the behavior that led to the ridicule than about the ridicule itself. A young attorney guest-anony-blogging on Evan Schaeffer’s blog provides a sterling example of such misdirected outrage, in this case, at a recent Institute for Legal Reform advertising campaign. Bonus sophistry: the author defines “frivolous lawsuit” to exclude the vast majority of problematic lawsuits that reformers are complaining about, and then happily concludes that there isn’t a problem with lawsuit abuse because there are already mechanisms for dealing with the narrowly circumscribed category of suits.

Bonus made-up medical-malpractice statistic unburdened by real data: “In states where the [medical] profession self-polices to a stricter degree, malpractice claims are far less frequent.” There’s no evidence that this is true; as Martin Grace noted a year ago, malpractice litigation is sufficiently random that previous claim history does little to predict future claim history. See also POL Jan. 6, 2005.

(Of course, if lawyers really believed that the problem with malpractice insurance rates was that the doctors weren’t self-policing, there is an easy solution that would end high insurance rates, make lawyers a huge profit, and end any pressure for liability reform. The only reason we don’t see the solution is because the lawyers know better than to put their money where their mouth is.)

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