Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for June, 2007

“That’s how they boost their billables”

This list of “Five ways to avoid costly litigation”, from the British site Human Law Mediation, is not exactly earth-shattering, but I did want to flag Carolyn Elefant’s post linking to it at Law.com’s Legal Blog Watch, which begins:

Of course, some lawyers want to encourage, rather than avoid, costly litigation, because that’s how they boost their billables. But if your client can’t afford a costly fight, or would rather focus its energy on building its business rather than embroiled in disputes, then take a look at this tips…

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Roundup – June 10, 2007

Here’s a Hollywood-themed edition of our irregularly-scheduled roundups:

  • When Sacha Baron Cohen accepted his Golden Globe award for Borat, he famously thanked all the Americans who hadn’t sued him “so far.” Subtract one person from that list; a New Yorker identifying himself as John Doe, who clever people quickly outed as businessman Jeffrey Lemerond, has now filed a lawsuit, claiming that he was humiliated by his appearance in the film. (Has anybody ever tried compiling a list of people who claimed they wanted privacy but filed lawsuits which exposed their secrets to a wide audience?) The Smoking Gun has the complaint. (Previous Borat suits: Dec. 2005, Nov. 9, 2006,Nov. 22, 2006)

  • A Beverly Hills store has settled its lawsuit against Us Weekly for refusing to give it free publicity. (Previously: Sep. 12, 2006, Sep. 22, 2006)
  • Carol Burnett’s lawsuit against the Family Guy gets tossed. (AP) On Point has details and the judge’s opinion. (Previously: Mar. 21.)

  • Two for the price of one: A couple of weeks ago, attorney Debra Opri sued her former client, Anna Nicole Smith-impregnator Larry Birkhead, for unpaid legal fees. Opri was last seen on Overlawyered sending exceedingly large bills to Birkhead, including thousands of dollars in cell phone charges.

    Now, Birkhead is suing Opri for conversion, fraud and malpractice. He claims that she took at least $650,000 of money owed to him for various appearance fees and has refused to return it; he also claims that Opri told him she was going to represent him for free in exchange for the publicity she’d receive, and then turned around and billed him hundreds of thousands of dollars. No, I’m sure this won’t turn into (yet another) media circus. (AP, TMZ.)

  • Judd Apatow, director of the movie Knocked Up, is being sued for copyright infringment by a Canadian author who claims he stole her book for his screenplay.

    A few months in, Eckler says she’s worn out by the litigation. “Here’s what it comes down to: 1) Being a writer, especially a Canadian one, without access to an unlimited bank account, sucks. 2) Copyright infringement is highly technical and difficult to prove. 3) Universal/Apatow know they have resources I do not have, and that every time they simply do not return my lawyer’s phone call, it costs me money.

    She also complains about her treatment at the hands of her first lawyer, who was referred to her by Apatow’s lawyer. (WSJ law blog; commentators at Volokh seem skeptical of the merits of her claims.)

  • Eleven year old boy, Dominic Kay, who directed a 15-minute movie starring Kevin Bacon, settles lawsuit against his neighbor, who helped finance the movie. “Kanter met Kay when her son played with him on a soccer team.” (L.A. Times)

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Avvo: Stop rating me or else

Raise your hand if you had “two days” in the “How long before Avvo ran into legal difficulties?” pool. According to the Seattle Times’ blog, on June 7 — just two days after Avvo publicly launched as a lawyer rating service — a local criminal defense lawyer, John Henry Browne, threw the lawyer’s equivalent of a temper tantrum. An excerpt from his demand letter to Avvo:

I wanted to notify you that I have retained counsel and will be exploring a lawsuit against your corporation for the ridiculously low rating you gave my law practice and the practice of other well-known and competent attorneys. We have yet to determine whether it will be a class action lawsuit or not. However, your rating and the attendant publicity has damaged my law practice and will continue to do so. In an effort to limit damages, I request that you remove your profile of me from your website immediately.

You’ve got to love the claim that his law practice was damaged in a total of two days. It’s also questionable as to whether he has a cause of action in any case; Google regularly gets sued by those who want their websites rated higher, and regularly wins these suits (see, e.g., Mar. 1, Mar. 23, Nov. 2002.) These are likely constitutionally protected opinions, although it’s obviously early to judge the merits of a lawsuit we haven’t even seen about a website whose methods are unclear.

We first mentioned Avvo on June 8. In the comments, Ted noted some problems with his ratings under Avvo’s system — but surprisingly, did not threaten to file a lawsuit. (Full disclosure: Avvo apparently hasn’t yet figured out that I’m a lawyer. But I assure you that the state of New Jersey extracts annual dues from me right on schedule.)

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Update: New trial for Julie Amero

The Connecticut substitute teacher was tried and convicted after her computer, probably owing to a malware bug, displayed smutty websites in students’ presence (Jan. 20, Feb. 15, Mar. 14). The original trial, notes Glenn Reynolds (Jun. 7), “seemed like a grotesque miscarriage of justice”; prosecutors did not oppose a defense motion for a new trial. (Nate Anderson, “Substitute teacher spared sentencing for porn pop-ups, gets new trial”, Ars Technica, Jun. 7).

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John O’Quinn scandal update

As we reported in April, trial lawyer John O’Quinn is subject to a potential contempt hearing for allegedly improperly withholding $18.9 million of settlement money from his breast implant clients. It turns out that this wasn’t the first mention of the scandal in Overlawyered. In August 1999, Walter reported:

As one of the wealthiest and most successful plaintiff’s lawyers ever, Houston’s John O’Quinn has been known to call press conferences at which he’s leveled charges highly damaging to his opponents’ reputations, accusing them (for example) of conspiring to “remain silent, conceal or suppress information” about problems with their products and operations. So what happened June 4 when O’Quinn was himself sued by a group of unhappy former breast-implant clients seeking class-action status against him? As Brenda Jeffreys reported in the June 14 Texas Lawyer, O’Quinn “didn’t hesitate before pummeling the class action lawyers with a libel suit” charging the lawyers with “encourag[ing] the news media to disseminate false, slanderous and libelous comments about Plaintiff” — said encouragement consisting of their press release about the lawsuit, and the press conference they were planning that would have explained it further.

Had the lawyers challenging O’Quinn succeeded in holding their press conference, interesting questions might have been aired. Their suit charges that a group of women numbering at least 2,000 were wrongfully overcharged tens of millions of dollars in claimed expenses, and that the firm of O’Quinn and Laminack breached its fiduciary duty to them; it sought a fee forfeiture totaling $580 million. But O’Quinn’s firm rushed to court to ask for a temporary restraining order to prevent the lawyers from holding a press event, and on June 7, while a judge was considering that motion, they agreed to a gag order and called off the conference they’d scheduled for that day. The whole process — from the first public notice of the suit to the gag order in hand — had taken only three days. “O’Quinn’s quick action may have prevented a firestorm of public attention to the class action suit,” writes the Texas Lawyer’s Jeffreys. It is not recorded whether any of the defendants O’Quinn has sued have ever tried, let alone succeeded in, such a tactic against him.

Here’s an entertaining wrinkle we haven’t reported: the case was sent to an arbitrator, because trial lawyer O’Quinn had required his clients to sign a binding arbitration agreement in the event of disputes! (The irony here is far greater than any Judge Bork personal injury suit.)

The Houston Chronicle reports that the three Houston attorneys on the arbitration panel determined in March that O’Quinn’s deduction was not authorized by his contracts with his clients, and that they are now deciding damages. The former clients, now represented by Joe Jamail, are asking for O’Quinn to completely disgorge all of his fees, a legitimate possibility under the Burrow v. Arce decision, which would be over half a billion dollars. Arbitration decisions are generally not appealable. It’s unclear what has happened to O’Quinn’s countersuit against his clients alleging libel. (Mary Flood, “O’Quinn’s law clients win round against him”, Houston Chronicle, Jun. 9 (h/t W.F.)).

Arbitration is generally quicker than litigation, but O’Quinn seems to have successfully stalled this case for over seven years, not to mention avoid any publicity from it. To date, we are the only media source that has even mentioned the contempt hearing.

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Debra Saunders on eHarmony suit

The San Francisco Chronicle columnist quotes me on the lawsuit (Jun. 1) filed by Linda Carlson against the online matchmaking service eHarmony.com because it won’t fix her up with a gal. I’m quoted saying that “Diversity in theory is the enemy of diversity in practice” and that although existing dating services catering to lesbians would be far likelier to get the plaintiff what she’s looking for, nowadays “It’s not just that you get the choices you want, but also choices you don’t approve of have to be taken away.” Also, a new nickname for Overlawyered: eDisharmony.com. (At some point the paper will presumably get around to correcting the misrendering of my name.) Among others quoted as commenting on the suit:

Mark Brooks, spokesman for the gay online matchmaking service myPartnerPerfect.com, said of eHarmony, “I think they’re having a bit of an unfair time of it. I think it’s their right to have a niche focus, but they’ve not quite said the right thing, and their underlying tone has riled people up.”

The best line comes when Saunders brings up the earlier case (Mar. 29, 2006) of the attorney who sued eHarmony because it wouldn’t let married guys like him look for dates: “Married and litigious — what a catch, girls.” (“Disharmony: The new tolerance”, Jun. 7). More: Rick Sincere, John Corvino.

June 8 roundup

  • Litigation as foreign policy? Bill authorizing U.S. government to sue OPEC passes House, and is already contributing to friction with Russia [AP; Reuters; Steffy, Houston Chronicle; earlier here, here, and here]

  • Albany prosecutors charge boxing champion’s family with staging 23 car crashes, but a jury acquits [Obscure Store; Times-Union; North Country Gazette]

  • New at Point of Law: Bill Lerach may retire; Abe Lincoln’s legal practice; Philip Howard on getting weak cases thrown out; “Year of the Trial Lawyer” in Colorado; and much more;

  • Multiple partygoers bouncing on a trampoline not an “open and obvious” risk, says Ohio appeals court approving suit [Wilmington News-Journal]

  • Skadden and its allies were said to be representing Chinatown restaurant workers pro bono — then came the successful $1 million fee request, bigger than the damages themselves [NYLJ]

  • Who will cure the epidemic of public health meddling? [Sullum, Reason]

  • Turn those credit slips into gold, cont’d: lawsuits burgeon over retail receipts that print out too much data [NJLJ; earlier]

  • Lawprof Howard Wasserman has further discussion of the Josh Hancock case (Cardinals baseball player crashes while speeding, drunk and using cellphone) [Sports Law Blog; earlier]

  • “Women prisoners in a Swedish jail are demanding the ‘human right’ to wear bikinis so they can get a decent tan.” [Telegraph, U.K.]

  • Disbarred Miami lawyer Louis Robles, who prosecutors say stole at least $13 million from clients, detained as flight risk after mysterious “Ms. Wiki” informs [DBR; earlier at PoL]

  • Indiana courts reject motorist’s claim that Cingular should pay for crash because its customer was talking on cellphone while driving [three years ago on Overlawyered]

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Bork sues the Yale Club

Before someone accuses us of playing this down, let me be out front and say that I find Judge Bork’s slip and fall suit against the Yale Club embarrassingly silly. The Wall Street Journal has the complaint. Judge Bork, speaking at the Yale Club, attempted to climb a raised dais that had no stairs or handrail; the 79-year-old failed to do so, and fell back, and hurt himself severely. I sympathize with Judge Bork’s serious injuries, but it’s beyond me what his lawyers are thinking in asking for punitive damages. And if any danger is open and obvious such that there is an assumption of the risk, surely the absence of stairs to reach a lectern on a dais is—especially if the dais is of the “unreasonable” height that the complaint alleges it to be.

(Bork used to be a fellow at AEI; and Walter and I have dined at the Yale Club.)

Update: Bloomberg has some relevant (and some not-so-relevant) quotes from Bork.

Update: More from David Bernstein. (The “Olson” quoted is Ted Olson, not Walter.)

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