Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for August, 2007

“Airman Who Alleged Rape Faces Court-Martial”

Amber Taylor points us to this AP article:

A female airman says she faces a court-martial next month because she refused to testify against three male airmen she accused of rape.

The woman is charged with one count of committing indecent acts and one count of consuming alcohol as a minor. The defense says the charges involve the same men she accused of raping her.

The woman dropped the charges after feeling “pressured”; the men agreed to nonjudicial punishments in exchange for immunity and their testimony against the woman. If the story is true (and that’s a big if: the only substantive comment in the coverage is from the defense attorneys, as the prosecutors are forbidden from commenting in detail while the case is pending), it is certainly something shocking: you’d expect that sort of thing in remote parts of Pakistan, not in the armed forces. Of course, as the Duke Lacrosse case showed, there are many other scenarios where a woman could allege rape, back down from her allegation, and legitimately be charged with wrongdoing. Court-martial is scheduled for September 24.

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Edwards – lawyer $ = Richardson or Dodd?

Yes, we’ve run several critical items on presidential fundraising lately (disclaimer), but this added bit seemed worthy of note:

…More than half of the Edwards donors who listed their occupations said they are attorneys, and they have given seven times more than any other profession, according to an Associated Press analysis of campaign finance data. …

In the first six months of the year, Edwards raised $23 million. But without the roughly $7 million collected from donors identified as attorneys, his numbers would fall closer to that of lower-tier candidates, such as New Mexico Gov. Bill Richardson and Connecticut Sen. Chris Dodd.

It should be noted that “donors identified as attorneys” is a term of art. Many donations from, e.g., lawyers’ family members or persons whose livelihood derives from litigation support services will not be so identified. Candidates Clinton and Obama have raised about one-sixth of their funds from donors identified as attorneys. (Mike Baker, “Attorneys still bankroll Edwards effort”, AP/Seattle Post-Intelligencer, Aug. 1). More on Edwards’ fund-raising here, here, here, here, here, etc.

P.S. I see the Times is also tackling the subject today: Leslie Wayne, “Lawyers’ Dollars? Not Just to Edwards”, New York Times, Aug. 9. (& welcome readers of Prof. Bainbridge, guestblogging at Andrew Sullivan’s).

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Big Dig tunnel collapse

No doubt: someone was negligent in the collapse of the Big Dig tunnel in Boston that killed one. The Latin phrase res ipsa loquitur comes to mind.

But it’s hard to understand why Massachusetts officials are going after Powers Fasteners, Inc.

Powers received an order for standard-set epoxy to be used in the tunnel ceiling, and sold $1287 worth. The construction company then used a different, fast-set, epoxy that was not designed for such long-term use. As a result, ceiling panels fell, crushing a car and killing one person. But Massachusetts is indicting Powers. Given that the penalty is a $1000 fine, the only purpose of this use of taxpayer dollars is to carry water for trial lawyers—or, perhaps, to help spread blame in the eventual suit against the Massachusetts Turnpike Authority by having a criminal conviction in hand. (Pam Belluck, “Glue Maker for Big Dig Is Charged in ’06 Death”, New York Times, Aug. 9).

As Bill Childs notes, attorneys predict a “big” settlement. Press coverage already indicates typical attorney 20/20 hindsight:

For instance, documents show that Big Dig managers at Bechtel/ Parsons Brinckerhoff and designers from Gannett Fleming cut by half the number of bolts they originally planned to use to hold up the ceiling, while significantly increasing the ceiling’s weight by making it out of concrete. These moves made the ceiling cheaper, the lawyers said, but less safe.

This, of course, is the wrong question. It sounds suspiciously like the use of a single document taken out of context of a normal design-planning process. (Is strict liability plus punitive damages to be imposed every time a design firm doesn’t adopt the most stringent and expensive design it considers?) The correct question is whether the actual design, implemented correctly, would have safely stayed up. If so, the design team didn’t act negligently if the failure was because of faulty installation; it is a question of mathematics that should be resolved in one direction or the other on summary judgment, as there should be no duty to design a large margin of error against a construction crew using the wrong epoxy.

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Chasing I-35W bridge clients

While “the divers are still in the river looking”:

Omar Jamal of the Somali Justice Advocacy Center in Minneapolis said he has received at least a dozen telephone calls from law firms, most of them local, since it became public knowledge that a pregnant Somali woman, Sadiya Sahal, and her 2-year-old daughter, Hanah Mohamed, were among those missing after the collapse.

The calls started coming about 4 p.m. Thursday, less than 24 hours after the collapse, and haven’t stopped, Jamal said. Some of the attorneys have asked for telephone numbers and other personal information about Sahal’s family, Jamal said.

“This is the worst form of ambulance-chasing,” Jamal said. “The divers are still in the river looking, and the attorneys keep calling us.”

(Chris Serres and Matt McKinney, “Question of liability rises”, Minneapolis Star-Tribune, Aug. 8)(via Ambrogi who got it from Minnesota Lawyer Blog).

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“The most expensive bill ever written”?

This Sunday’s Boston Globe magazine had a long feature piece which addressed the burning question, “Do We Really Need A Law To Protect Fat Workers?” The “law” in question would be a law which forbid “discrimination against overweight and unusually short people.” While I resemble that remark, you won’t be surprised to find me answering the question, “No,” in contrast to the politicians and activists who think it’s a great idea. The problem they face? Too many people inconveniently think that being overweight is a choice; they need to convince these skeptics that weight and race are really the same thing.

Although some people worry that the law would lead to a flood of lawsuits, the supporters of the bill pooh-pooh that notion, based on implausible statistics about disability discrimination lawsuits. Besides, their goal (nudge-nudge, wink-wink) isn’t really lawsuits at all:

Like the race laws, then, the weight-discrimination bill has a goal that extends beyond the legal system: to change the way we think. The idea is not to clog up the courts. Instead, it’s to create a society where hundreds of lawsuits aren’t needed, because there’s not as much to sue over – a society of people who have the legal right to say hurtful things and the compassion to know better than to act on them.

But if it does clog up the courts — the ADA only applies to those so obese that they can call themselves disabled, while the proposed Massachusetts law would apply to anybody who is overweight, which seems to be most of the population — it won’t be the author of the bill who suffers, but employees and business owners.

Of course, even if Massachusetts does pass this law, it wouldn’t be the worst; California already has far wackier anti-discrimination laws with its full-employment-for-lawyers Unruh Act. Unruh, despite listing the usual categories found in anti-discrimination laws (sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, and sexual orientation) actually has been interpreted by state courts to prohibit all “arbitrary” discrimination. As Cal Biz Lit explains:

In earlier cases, the courts have held the act to prohibit business discrimination based on :
• A customer’s association with a male with long hair and “unconventional” dress; 
• Having children; and
• Status as a police officer (when the ACLU tried to kick a cop out of a meeting).

If a creative lawyer hasn’t shoehorned obesity in there already, he will soon enough.

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Updates – August 8

1. Yet another Roy Pearson update: the Washington Post, confirming a previous rumor, reports that he’s closer to losing his job. The Commission on Selection and Tenure of Administrative Law Judges (CSTALJ?) has voted to start the process of terminating him, by sending him a letter notifying him that he may not be reappointed to his job. Of course, the procedure alone makes the story a perfect fit for Overlawyered. Pearson can’t just be fired; that would be too easy. First, his boss had to make a formal recommendation. Then, the Commission had to decide to send that letter. And now?

Pearson is not out of work yet. The letter is a key step, though, alerting him that his reappointment is in jeopardy. He has 15 days to file a rebuttal and could push for reappointment by appearing before the commission at its next meeting in September.

The wonders of public employment. And then if he’s turned down, of course, he can sue!

Apparently trying to destroy a business by using the legal system to extort millions from the owners isn’t his big sin; his big sin is being rude to his boss:

Concerns about Pearson’s temperament as an administrative law judge preceded the publicity about the lawsuit this spring. The letter from the commission focuses on those concerns, addressing the lawsuit only briefly.

In e-mails sent to his fellow judges and cited in the letter, Pearson’s contempt for Chief Administrative Law Judge Tyrone T. Butler was evident. In one of the missives, he spoke of protecting himself from any attempt by Butler “to knife” him. In another, he questioned Butler’s competence and integrity.

Incidentally, he was serving a two year term, but if he wins reappointment, it will be for a ten year term.

2. Updating a story from Mar. 25, a federal judge has banned the navy from using sonar in training exercises:

Cooper said it was never easy to balance the interests of wildlife with those of national security. But in this case, she said, environmental lawyers have made a persuasive case that the potential harm to whales and other marine life outweighs any harm to the Navy while the court case proceeds.

Because, clearly, a bunch of lawyers are in the best position to design United States naval strategy.

(Other whale-sonar lawsuit coverage: May 17, Jul. 2006)

3. Remember the Kentucky Fen-Phen scandal? The one in which the class action attorneys were accused of misplacing $60 million of their clients’ money into their own pockets? (We’ve covered it May 20 and earlier) Well, a federal judge has now ruled that they need to repay $62.1 million to their clients. So far. Still to come: a ruling on punitive damages, a criminal trial, and the suit against Cincinnati attorney Stan Chesley, who’s accused of the same wrongdoing. (AP/Forbes)

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Update: My mother, the car

Mothers Against Drunk Driving (MADD), which is fairly described these days as neo-Prohibitionist, continues to promote the development of automobiles which will be mechanically inoperable in the presence of indicators of drunkenness. A new Nissan prototype includes alcohol sensors in both the driver and passenger seat. Passenger? (Classical Values, Aug. 4). Earlier: Aug. 19, 2005, May 28, 2006.

More from DUI Blog: “Imagine if even one of these gizmos malfunctions — at high speed.”

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Defensive EMS practice

From the comments to this July 30 post at KevinMD about defensive medicine:

“Spreading to paramedics?”

Doc, it’s been prevalent in EMS for years. Virtually every EMS system in this country is designed specifically to serve less than 1% of its run volume – cardiac arrest patients.

We continue to spinally immobilize (now there’s a misnomer!) trauma patients, despite the evidence that clinical exam criteria can safely clear these patients and other evidence that questions whether pre-hospital spinal immobilization is even beneficial.

We fly people on helicopters based on nothing more than mechanism of injury, despite the mounting number of fatal crashes and the fact that 95% of those patients flown to the ED were discharged home directly from the ED. That’s right – we flew them on a $10,000 flight, and they weren’t even sick enough to be admitted.

Prehospital care is a bastion of defensive medicine. Has been for some time.

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New Yorker cartoon caption

In the new (Aug. 13) issue, the picture shows a dad in living room admonishing son: “We don’t want you inviting friends over to play. There are liability issues.”

More: reader James Fulford notes in comments:

This is visible online at at the New Yorker Store. You can buy a print or in some cases, the original art. In the same issue, there’s defensive medicine: “I don’t like the look of these. I better send them up to legal.” (A doctor holding x-rays and a patient sitting on the examination table.)

And the criminal defense bar:“Make eye contact with the jury, but not homicidal-maniac eye contact.” (Lawyer to client.)