Jacob Weisberg does a very nice job of deflating the supposed “GOP strategist” (“The Erring Republican Authority”, Slate, Mar. 29), but I like to think I got there first.
Archive for 2006
No abuse of process here, move along
Dr. Hazel I. Holst contends that attorney Harry J. Oxman named her as a defendant in a lawsuit brought by Roderick T. Powell arising from a nasal surgery performed in 1970 even though — kind of a big gap in the case — “there was absolutely no record of Dr. Holst ever treating Mr. Powell”. So she sued Oxman for various counts including abuse of process, extortion and racketeering. Now U.S. District Judge R. Barclay Surrick of the Eastern District of Pennsylvania has dismissed her complaint, ruling that 1) Holst could not prove that the case eventuated in a verdict or dismissal in her favor — a prerequisite for an abuse of process claim — because the case had apparently been diverted to alternative dispute resolution and resolved there without a “verdict”; 2) she could not prove racketeering because she made no showing that the lawyer followed a pattern or practice of filing cases of this sort, and — this is my favorite — 3)
that Holst had also failed to allege a valid claim of abuse of process because her extortion claim was limited to an allegation that Oxman had initiated the suit in the hopes of inducing settlement discussions [he had in fact demanded $200,000, per her account].
“This tort requires a ‘perversion of legal process after it has begun in order to achieve a result for which the process was not intended….” [the judge wrote]
(emphasis added). Should we infer that enabling $200,000 demands against doctors under these circumstances is the sort of purpose for which the process was intended? (Shannon P. Duffy, “RICO Suit Against Lawyer Dismissed due to Lack of ‘Enterprise'”, Legal Intelligencer, Mar. 23).
Dead daughter, dilatory dad
Nixzmary Brown was the seven-year-old girl whose grim fate made New York City headlines this winter: she was allegedly tortured, bound and eventually beaten to death by her stepfather while her mother stood by. In the latest development, Nixzmary’s biological father, Abdurrahman Mian, who had lost touch with her mother around the time of the child’s birth and never laid eyes on his daughter during her lifetime, has surfaced with plans to file legal papers asking to be named administrator of the girl’s estate, in preference to her maternal grandmother. The mother’s relatives contend that his newfound manifestation of paternal sentiment may relate to the likelihood that Nixzmary’s estate could be worth millions pending the outcome of expected wrongful-death lawsuits against public agencies that failed to protect her. (Lorena Mongelli and Alex Ginsberg, “He Is the Birth Dad Nixzmary Never Knew”, New York Post, Mar. 17). For another father who rediscovered the love of his child once a multimillion dollar judgment was possible, see Jul. 18, 2005.
Wal*ocaust
It’s blatantly a parody, coupled with social criticism of the world’s largest retailer, but Wal-Mart had its lawyers fire off nastygrams to computer store owner Charles Smith and, perhaps more effectively, to CafePress. Now things have proceeded to court. Smith’s website is here. (Abigail Goldman,”Wal-Mart Parodist Sues to Sell Products”, L.A. Times/Chicago Tribune, Mar. 7)(via Housing Panic).
Defensive medicine? [accept / decline]
Maybe it’d be a good idea to offer patients that choice — but as one doctor explains at Kevin Pho’s, our presently constituted legal system wouldn’t stand for it (Mar. 5).
Dating service sued for turning away married man
Attorney John Claassen, formerly of Skadden Arps, is suing online matchmaker eHarmony.com, which declined to list him because he is not yet divorced and it has a rule against listing profiles of persons who admit to being married. He’s claiming marital-status discrimination in his suit, filed in Alameda County. (Knight-Ridder; AP; SFist)(& welcome Sploid readers). More: Akhmed Al-Fayyed explains why he thinks eHarmony might lose (Mar. 29).
Smoking in private clubs
TiVo’s triumph
The greatest accomplishment of 41-year-old TiVo general counsel Matthew Zinn? It’s that his nine-year-old company hasn’t yet “been sued out of existence.” (Petra Pasternak, “TiVo Against the Giants”, The Recorder/Law.com, Mar. 15).
If I could sue like the animals
Canadian photographer Gregory Colbert is starting an outfit he calls the Animal Copyright Foundation whose intent is to collect royalty payments on behalf of animal species as compensation for the use in advertising of, for instance, the Budweiser Clydesdales, Target’s spotted dog, the Hartford’s stag, and other furred, finned or feathered creatures, the proceeds to be distributed to conservation causes that benefit animals. In all fairness, media accounts describe Colbert as seeking not obligatory rules requiring payment of the 1 percent royalties when a photo or video is used, but rather a “seal of approval” system in which advertisers vie for consumer favor by voluntarily pledging the set-aside. One almost hesitates to publicize the idea, however, for fear it will percolate in the law schools and emerge after a few years as an asserted new legal entitlement, as “animal standing” has done. (WSJ law blog, Mar. 16; Tim Nudd, AdFreak, Mar. 10; Lunch Over IP, Feb. 25).
Coaching police experts
Lawrence Taylor at DUIblog (Mar. 17, via Cernovich) has got the goods on a coaching memo given by the San Diego Police Department to the technical experts they put on the stand to testify as to drivers’ blood-alcohol levels (emphasis in original memo):
You will always mix any tube with an anticoagulent [sic] 10 times (you count the inversions). The important things to remember is that you always follow the same procedure, so even though you don’t remember this particular individual, you know that you drew the person following our standard procedure.
As Taylor observes, the witnesses are instructed to testify under oath to an account calculated to help the prosecution prevail, “not as to what they actually did and what they know to be true in a specific case”.
For more on witness-coaching, see Sept. 10, 1999, Sept. 22-24, 2000, and, of course, our many entries on the famous Baron & Budd witness memo scandal.