Longtime readers of this site may remember attorney Judy Cates of Swansea, Ill., who filed and later settled a defamation lawsuit against St. Louis Post-Dispatch columnist Bill McClellan over a humorous and disrespectful column McClellan had written regarding a controversial class-action settlement Cates and other lawyers had reached with magazine sweepstakes firm Publishers Clearing House (Nov. 4 and Nov. 30, 1999; Feb. 29, 2000; for other watch-what-you-say-about-lawyers cases from Madison County and thereabouts, see Dec. 23, 2004). More recently, Ms. Cates served as elected president of the Illinois Trial Lawyers Association (Jul. 3, 2006). And now she’s thrown her hat into the ring for a seat on the state Fifth District Appellate Court, which sprawls over 37 counties. She’ll mount a challenge in the February Democratic primary to Jim Wexstten, who was appointed this year to fill a vacancy on the court and who is regarded as a moderate-to-conservative Democrat. The Post-Dispatch’s coverage forgivingly (or perhaps prudently) does not mention her having sued the paper’s columnist (Adam Jadhav, “Swansea lawyer to challenge appointee for judgeship”, St. Louis Post-Dispatch, Aug. 25; Nicholas J.C. Pistor, “Lawyer’s entry heats up race for appellate court”, Aug. 28; “Not recommended” (editorial), Madison County Record, Aug. 18).
Archive for September, 2007
Nifong/Lacrosse update
Former Durham prosecutor Mike Nifong, railroader of the Duke Lacrosse 3, was found guilty of contempt of court and sentenced to one day in jail; this punishment is for lying to the trial court about the existence of DNA evidence. He reported to jail today to serve his sentence. He has already been disbarred, of course.
Next to come is the players’ civil suit, though that money is unfortunately going to come from the taxpayers of Durham rather than from Nifong. The players are attempting to negotiate a settlement before filing their suit; they’re reportedly seeking $30 million, plus changes to the legal process to allegedly prevent the district attorney from hijacking a police investigation the way Nifong did. They intend to file suit within a month if the city doesn’t settle. (AP, Herald-Sun)
And then there’s this little tidbit:
Durham’s Police Department, which helped Nifong secure the indictments, has also come under criticism. A special committee probing police handling of the case stopped working last month, however, because the city’s liability insurance provider warned that the committee’s conclusions could provide material for lawsuits.
At this point, if we were Bizarro-Overlawyered I’d be rambling about “Profits over People” or something, but since we’re not, I’ll just point out that it simply demonstrates the perverse incentives of the legal system and its unbounded discovery rules. As long as everything you put on paper can be used against you — even in hindsight — then the incentive is not to put it on paper. (Of course, I’m not suggesting that the specific wrongdoing in Durham was only obvious in hindsight; people like K.C. Johnson figured it out right away. But the incentives are the same in every case.)
Attorney-presidents
We’re very likely to have one next time (Jill Lawrence, “For next president, USA likely to call on lawyer”, USA Today, Sept. 5).
Updates – September 7
Some updates to earlier stories we’ve covered:
- Spyware maker Zango, which embarked on a strategy of suing all the anti-spyware vendors that were calling its products spyware, has dropped its lawsuit against PC Tools, the maker of Spyware Doctor. (We covered the filing of the lawsuit on May 23.) Presumably it chose to drop the suit because it just lost a similar one against Kapersky Lab, with a federal court ruling that antispyware companies’ decisions of this sort are protected from suit.
Eric Goldman has the details, including links to all the relevant decisions.
- We reported on August 21st on the “crackpot” libel suit against blogger PZ Myers for an unflattering book review. Stuart Pivar, who filed the suit to great derision in the blogosphere, apparently dropped the suit a week later. (Even if the suit had legal merit, it was filed in the wrong court, so dismissal was just bowing to the inevitable; in theory, Pivar could refile in the appropriate court, but after the way constitutional law professor Peter Irons dissected the complaint, I think Myers ought to feel safe.) Free hint to readers: defamation lawsuits are almost always a bad idea. All they do is provide publicity to the very claims one is trying to suppress. Defamation lawsuits against prominent bloggers are even less sensible.
- Two years ago, the Illinois Supreme Court put an end to one of the more fraudulent “consumer fraud” lawsuits ever filed, a $10 billion lawsuit against Philip Morris for marketing “light” cigarettes in accordance with federal guidelines. But even though the state’s highest court ordered the case to be dismissed, Madison County repeat offender Steve Tillery went back to a local court run by notorious Judge Nicholas Byron and tried to reopen the lawsuit. Finally, last month the Illinois Supreme Court definitively slapped down Tillery, telling Byron to dismiss the case.
(Overlawyered’s sister site Point of Law has been covering this case.)
Federal court: Fieger can call judges Nazis
We’ve covered many of Michigan trial lawyer Geoffrey Fieger’s antics and legal troubles here on Overlawyered over the years; his most recent problems include being censured in Arizona and being criminally indicted for illegal campaign contributions.
But he may have managed to wriggle out of punishment for at least one of his shenanigans: his 1999 radio tirade in which he labelled as Nazis the judges who ruled against his client. He was sanctioned by the Michigan courts for this conduct, with the Michigan Supreme Court upholding the discipline against his first amendment challenge in Aug. 2006 (Yes, that’s seven years after the incident.)
But this week, a federal court bought Fieger’s first amendment argument, holding that the rules under which he was sanctioned were unconstitutional.
The rules say lawyers must treat everyone involved in the legal process with “courtesy and respect” and should “not engage in undignified or discourteous conduct” toward the bench.
In the decision released late Tuesday, U.S. District Judge Arthur J. Tarnow said “the rules are unconstitutional on their face because they are both overly broad and vague.”
If we were snide, we might note that it could say something about Fieger that he couldn’t figure out that calling someone a Nazi is not dignified or respectful. We were amused at the Court’s reasoning for why Fieger had standing to challenge these rules:
The likelihood that Plaintiff Fieger may again say something negative about a Michigan court that could subject him to further punishment under the courtesy provisions is not the attenuated situation presented in Grendell. Plaintiff Fieger is a vocal, often harsh, and at times vulgar critic of Michigan’s judiciary.
You don’t say.
“Coney Island side show ‘freak’ studying to become a lawyer”
Tattoo-covered Eduardo Arrocha, who’s been eating nails for 15 years in the sideshow role of “Eak the Geek”, has decided to become a lawyer and has begun studies at Cooley Law School in Lansing. (AP/MLive, Sept. 4). James Taranto rather unkindly speculates that Arrocha’s career switch “will improve the prestige of both professions” (WSJ Best of the Web, Sept. 5).
Pro bono as profit center, cont’d
Just so you’re totally clear on the meaning of the term pro bono when you read it from now on:
McMinimee [Seattle Public Schools attorney Shannon McMinimee] says it’s “disingenuous” for the law firm, Davis Wright Tremaine, to go after money when the firm took the case pro bono. But firm spokesman Mark Usellis said “pro bono” means their clients don’t have to pay.
“The thing that’s really important to us in a civil-rights case is that Congress specifically and explicitly wrote into the law that if the government is found to have violated citizens’ civil rights, then the prevailing party should seek fee recovery,” he said.
Most governments can argue, as Seattle Public Schools is, that they don’t have much money. But going after the fees helps deter other government bodies from violating civil rights, Usellis said….
If the firm wins, the fees likely wouldn’t be covered by the district’s insurance carrier, McMinimee said. So the money would have to come out of the district’s $490 million general-fund budget.
(Emily Heffter, “Law firm wants school district to pay $1.8M”, Seattle Times, Sept. 6).
Quoted in Chicago Tribune
On the subject of Hizzoner and the gun litigation (James Oliphant, “Giuliani hitches star to conservative legal group”, Sept. 6).
Must-read Instapundit post
Glenn Reynolds quotes (AEI visiting scholar) Jack Goldsmith:
In my two years in the government, I witnessed top officials and bureaucrats in the White House and throughout the administration openly worrying that investigators acting with the benefit of hindsight in a different political environment would impose criminal penalties on heat-of-battle judgment calls. These men and women did not believe they were breaking the law, and indeed they took extraordinary steps to ensure that they didn’t. But they worried nonetheless because they would be judged in an atmosphere different from when they acted, because the criminal investigative process is mysterious and scary, because lawyers’ fees can cause devastating financial losses, and because an investigation can produce reputation-ruining dishonor and possibly end one’s career, even if you emerge “innocent.”
Reynolds: “As I’ve said before, this war has been overlawyered, which is not to say it has been well-lawyered. … Law and lawyers are swell in their place. The extent of that place, however, is not unlimited.” And a Reynolds commenter says:
Welcome to the post-SarBox, [Eliot] Spitzer world. We in business face this on a regular basis. I can’t decide whether I’m glad public servants experience the same headaches we do or concerned because an intelligence/military failure costs lives, while a business failure costs only money (though when Spitzer was around, it also sometimes cost freedom).
In business, not only has bad judgment become a crime, so has a good decision made on the basis of incomplete information, which later turns out to have been the wrong call. This is not good for America, where innovation and risk are what we do better than Europe, China, or India.
In the words of the master blogger himself, Read the whole thing.
No dice on Carls Jr.’s “Angus” suit
The increasingly snazzy On Point reports:
U.S. District Judge Andrew J. Guilford in Los Angeles denied CKE Restaurants’ motion for an order enjoining Jack in the Box from airing two television commercials promoting its rival “100% Sirloin Burger,” saying there was no evidence they misled consumers as to the physical origin of Angus beef.
We first noted the suit May 26, but only included one of the two commercials. Here’s the other: