Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for April, 2006

It’s In the Tiny Print

Law prof Kris W. Kobach, former advisor to the Attorney General on immigration issues, finds some of the more hideous provisions of the current immigration bill.

Like that surprise hidden on page 302 – which would replace the country’s entire bench of experienced immigration judges with pro-immigration advocates.

With a few exceptions, today’s immigration judges (who serve for life) are dedicated to enforcing the law, and they do a difficult job well. This bill forces all immigration judges to step down after serving seven years – and restricts replacements to attorneys with at least five years’ experience practicing immigration law.

Lawyers meeting that description, he notes, are not particularly inclined to enforce the law.

Eeek.

(Via Lucianne.com).

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Legal Snafu Halts N.O. Bus Auction

In the “Can’t Do Anything Right” category, the New Orleans public school system was instructed to halt an internet auction of one of the infamous flooded school busses when it was discovered that the state School Board’s authorization for the auction did not include the internet variety.The State board’s lawyer discovered that although the board authorized an “auctioneer” to handle the sale, the system is bound by the state’s definition of that term, which does not include Internet auction sites.

Bids had reached $6,700 for the soggy scrap metal, but were thrown out as re-authorization is sought.

Via Lucianne.com.( Times Picayune, Apr. 7)

Further Developments in the Milberg Weiss Case

The U. S. Justice Department is looking at possible new indictments in the kickback investigation of powerhouse plaintiff firm Milberg Weiss Bershad & Schulman. (Apr. 7)

Here’s a telling sentence:

David Bershad, partner Steven Schulman (are) being looked at in connection with payments to Howard Vogel, a real estate broker and former lead plaintiff in several Milberg class actions.

Mr. Vogel must be prone to bad luck, eh?

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Pigs at the Slaughterhouse?

The team of lawyers who recently won the largest-ever bad faith insurance verdict in Pennsylvania — more than $7.9 million — are asking U.S. District Judge Cynthia M. Rufe to make new law by awarding them $2.3 million in fees, the largest award of attorney fees that would ever have been granted in such a case.

The lawyers argue that the lodestar approach,under which their fee would be about $323,000, is flawed for two reasons: because the lawyers who bring such cases almost never bill for their work at an hourly rate, and their clients have most often agreed to a contingent fee in which the lawyers will be paid a set percentage of any verdict or settlement they win, usually one-third.

As a result, Tanner and Newman argue, the lodestar approach “unduly focuses the court’s scrutiny on a fictional contrivance as opposed to an approach which accurately reflects the manner in which such cases are handled.”

Of the $7.9m jury verdict, $6.25m is punitive damages, which, the defense argue, is a sufficient pot of money out of which the lawyers can extract their fees. (Law.com, Apr. 7)

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Vioxx coverage (and more) at Point of Law

For comprehensive coverage of this week’s verdicts in lawsuits against Merck, see Point of Law. In particular, Ted corrects reporters who keep passing on ill-informed assertions that the Cona/McDarby results are going to preclude Merck from raising its earlier defenses in the thousands of Vioxx cases yet to come, and that that New Jersey cases are being heard in “Merck’s home court“.

Other things you’ve been missing if you don’t check our sister site regularly:

* New regular contributors include Larry Ribstein (Ideoblog), Tom Kirkendall (Houston’s Clear Thinkers), and Sam Munson (Manhattan Institute);

* Theodore Dalrymple on a new history of vaccine litigation;

* Jim Copland on Rep. Cynthia McKinney and a class action on behalf of Capitol police;

* Ted on the Supreme Court’s recent Dabit decision on state-court securities suits (here and here); and on a new med-mal study;

* Michael Krauss on a tort suit in the U.S. against ExxonMobil over abuses by the Indonesian military;

* Jonathan B. Wilson on offer-of-judgment reform in Georgia (and more); and joint-and-several-liability reform in Pennsylvania, just vetoed by that state’s Gov. Ed Rendell;

* Posts by me nominating an Arizona lawprof for “the worst and most tendentious analogy in the history of the liability debate”; on doctors’ Good Samaritan liability; a ruling in the New York school finance case, an AG who dissents from his brethren on the tobacco deal; the Rhode Island lead paint verdict (here, here, etc.); Seventh Circuit judge Diane Sykes criticizes the Wisconsin Supreme Court; and lost-overtime suits on behalf of $400,000-a-year stockbrokers. And, of course, much much more — bookmark the site today.

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More Delicious Language

Continuing to mix my business with pleasure, I pass along this fine prose from Ballarin, Inc. v. Licensing Board of Boston, 49 Mass. App. Ct. 506 (2000):

For some diners, consuming an appetizer of duck liver pâté, rolled in pistachio, lingonberry coulis, served with garlic pita points, followed by an entrée of venison au poivre, finished with a dessert of chestnut mousse gateau, apricot glacé, is still more rapturous if preceded by a dry martini or ended with a cognac. To satisfy that want, Ballarin, Inc., which operates The Hungry I restaurant at 71 1/2 Charles Street at the foot of Beacon Hill in Boston, applied in 1995 to the licensing board for the city of Boston for a seven-day all-alcoholic beverages license….

…At what was to be a first hearing on Hungry I’s application before the licensing board, proponents and opponents of the award of an all-alcoholic beverages license made known their views, by speech and writing. Among Hungry I’s adherents were some abutters and many patrons, one of whom touted the salubrious tendency of a Bloody Mary to increase levels of good cholesterol. Those opposed mustered all the political artillery–the Beacon Hill Civic Association and elected public officials. The principal argument advanced against granting the application was “opening of the floodgates”; i.e., were Hungry I to receive an all-alcoholic beverages license, how could the licensing board say no to others? The neighborhood would go down the drain….

Foreigners to Massachusetts might get the impression that rhetorical flourish is a sine qua non of our judicial appointees. Would that it were the case.

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New tort in California?

The California legislature passed a law in 1998 barring the intentional transmission of HIV, and now the California Supreme Court is considering whether to create a new tort of negligent transmission of sexually transmitted diseases. The coverage of the oral argument in Bridget B. v. John B. makes it sound more like a legislative debate than a legal discussion, but only one justice is noted as commenting on that fact. (Mike McKee, “Calif. Supreme Court Sees Need for Disclosure of Sexual History”, The Recorder, Apr. 6).

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ABC “PrimeTime” on false confessions

“If you still think you would never confess to a crime you didn’t commit, listen to this.” Georgia Criminal Law Blog has a summary of the show (Mar. 31)(via Cernovich). Only seven states require that the full course of a police interrogation be taped in order to better evaluate the credibility of a confession; with the cost of such recording technology dropping ever closer to zero, it’s hard to see the case against a full-taping policy.

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