Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for August, 2006

De-villainizing Dr Pepper

Commentary on soda-tax proposals that’s equally applicable to the obesity litigation wars:

…soda, by itself, isn’t making us fat. According to numbers from the U.S. Department of Agriculture, regular soda consumption has been falling every year since 1998, but at the same time obesity has skyrocketed. In 2004, we actually drank less soda per person than in 1995, long before obesity was making headlines.

(Sara Cseresnyes and Andrew Chamberlain, “Soda Tax the Wrong Way to Help Curb Obesity”, Denver Post, Jul. 21, reprinted at Tax Foundation site) (via Radley Balko, who adds, “Yep. In fact, the beverage that has by far seen the largest increase in consumption since about 1980 is bottled water. Diet soda is second.”) Related: Lorraine Heller, “The Obesity Blame Game”, Beverage Daily, Aug. 7, and reader feedback at that publication.

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Cruel and Unusual Sex

Elevating the quality of prisoner-initiated Constitutional claims, Boxer X claims that he was subjected to cruel and unusual punishment when he was “forced” by a female guard to masturbate in front of her.

The 11th Circuit denied rehearing en banc a review of the lower court’s decision that this did not constitute cruel and unusual punishment.

Discuss.

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Summary Judgment Like a Good Wine

The First Circuit Court of Appeals recently vacated a “substantial” jury verdict in a defamation case against The Boston Phoenix, finding that the lower court was too quick to earlier rule on summary judgment that the plaintiff, a Maryland state prosecutor, was not a “public figure” for purposes of libel law.

Judge Selya chose an interesting metaphor to open the Court’s opinion:

“The oenologist’s creed teaches that we should drink no wine before its time. Much the same
principle applies to summary judgment; it is a deliciously helpful device if properly timed, but one that can leave a sour taste if brought to bear on an insufficiently fermented record.”

Orson Wells introduced us to that motto on behalf of that tower of oenological perfection, Paul Masson. But like the wine of Paul Masson, I find Judge Selya’s stretching of the metaphor a little dry on the palate.

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Deep pocket files: Wal-Mart on $4.2 million hook for carjacking

Katoria Lee refused a carjacker’s command to surrender her car-keys in 2001, so he shot her in the back. This, a Georgia state court jury decided, was the fault of Wal-Mart, who owned the parking lot where the shooting occurred. Eric Deown Riggins, 22, was caught within minutes, and is serving a 15-year sentence in state prison for the crime.

Lee’s attorney, Lance Cooper, mentioned the 398 visits by police to the Riverdale Wal-Mart in the twenty months before the accident as evidence that there should have been “more” security that made Wal-Mart at fault for a third-party’s malicious crime, but that figure is highly misleading, because, until very recently, Wal-Mart had a zero-tolerance shoplifting policy to press charges for even the most minor of shoplifting crimes. (Kathy Jefcoats, “Woman shot in Wal-Mart lot awarded $4.2 million by jury”, Atlanta Journal-Constitution Aug. 10).

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And I say “Mea culpa”

Philip Greenspun (via Newmark):

With so many of America’s best and brightest making the personal choice to go into fields that, at best, transfer money from one pocket to another, I thought “Thank God we have immigrants, since if we had to rely on these folks for economic growth, we’d be toast.”

(See also the comments to that blog post.)

When Shutting Up Is Essential to One’s Livelihood

The Legal Reader points us to Court T.V.’s video of Attorney Joseph Caramango’s stunning display in the courtroom as he tries to explain why he was an hour late for a jury trial in which his client was facing life imprisonment. It wasn’t the five shots of tequila he had at 4 am the night before. It wasn’t the beer he admitted having at lunch the day before during jury selection.

Video is long and painful — a classic Schadenfreud.

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Court Compels Lunch

Judge Pendleton Gaines of he Superior Court of Maricopa County, Arizona must be a popular jurist indeed. Here, he grants plaintiff counsel’s Motion to Compel Acceptance of Lunch Date, ruling:

“The Court has rarely seen a motion with more merit. The motion will be granted.

The Court has searched in vain in the Arizona Rules of Civil Procedure and cases, as well
as the leading treatises on federal and Arizona procedure, to find specific support for Plaintiff’s
motion. Finding none, the Court concludes that motions of this type are so clearly within the
inherent powers of the Court and have been so routinely granted that they are non-controversial
and require no precedential support.

The writers support the concept. Conversation has been called “the socializing
instrument par excellence” (Jose Ortega y Gasset, Invertebrate Spain) and “one of the greatest
pleasures in life” (Somerset Maugham, The Moon and Sixpence). John Dryden referred to
“Sweet discourse, the banquet of the mind” (The Flower and the Leaf)….”

More light-heartedness follows. (The Legal Reader, Aug. 8)

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A “‘disquieting’ attempt to name law firm partner as wife’s co-trustee”

When two sisters engage in a battle over control of their mother’s estate, it can only get uglier when one trustee sisterattempts to have her husband’s law firm appointed as successor trustee. But it helps with the Court if said firm isn’t brazenly overbilling the estate in the process:

“Greenberg Traurig billed the estate almost $130,000, which is now at issue in a pending contempt motion. Sankel claims the amount should be repaid to the trust since Greenberg Traurig’s services were retained for the personal benefit of Linda Spector and Jacobs, whom she eventually married.

In the contempt motion, Sankel also noted the disparity between the fees paid to Greenberg Traurig and his own firm in the course of the dispute. He noted that his firm had billed the trust $22,000 in the same time period. He is requesting invoices from Greenberg Traurig to back up charges, some of which he claims were “wholly frivolous.”

(Law.com, August 8)

Kill a Judge, Sue a Lawyer

It’s all in a day for notorious white supremacist and convicted felon Matthew Hale, who, once convicted of attempting to arrange for the murder of a federal judge, then did what any ordinary American convict would do — sued his lawyer for malpractice.

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