Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for 2006

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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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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