Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for 2007

Fight over daughter’s surname lasts 2 1/2 years

Chad M. Doherty wasn’t married to Christy M. Wizner when their daughter was born in April 2004, but he nonetheless wanted the child to bear the surname Doherty and objected to the mother’s bestowing on her instead the surname Wizner. Both sides lawyered up and have been duking it out in court ever since. A trial judge ruled in the father’s favor, finding it of significance that Wizner was the name of the mother’s former spouse but not the mother’s birth surname. The Oregon Court of Appeals, invoking an 11-factor balancing test, reversed the ruling and allowed the mother’s choice to prevail. The mother says she wants the girl to bear the same surname as her older siblings. (Ashbel S. Green, “For a baby name with appeal, try appeals court”, The Oregonian, Jan. 1).

P.S. I see J. Craig Williams got this first (Jan. 3)(via Blawg Review #90 at Minor Wisdom).

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Wants $1.5M for cops’ seizure of 114 frozen cats

Tennessee: “A Murfreesboro man charged with animal cruelty after more than 100 frozen bodies of cats were found in freezers in his home is suing authorities for $1.5 million. The lawsuit was filed exactly three years after authorities confiscated 114 frozen bodies of cats and kittens from William Terry Davis’ home in an upscale golf course community in Murfreesboro.” Davis is represented by attorney Harold H. Parker. (Clay Carey, “$1.5M suit filed over frozen cats”, Gannett/Murfreesboro Daily News Journal, Jan. 6; The Smoking Gun; “Man Sues Police For Seizing Frozen Cat Bodies From His Freezer”, AP/WTVF, Jan. 6; Nashville Scene, Jan. 5).

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January 7 roundup

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Privacy laws and James Kim

In today’s WaPo, Spencer Kim, the father of James Kim, the father of two who died of hypothermia after his family became lost in an Oregon park, notes the effect that privacy laws and liability concerns had on the search:

Congress should change the law so that most recent credit card and phone-use records can be immediately released to the next of kin in the event of an emergency. Privacy laws are important to safeguard personal information, but there needs to be provision for exceptional access to information by relatives when it is critical to a family member’s survival.

Four days passed before we even knew James and his family were missing. But because my family was unable to confirm credit card and phone-use information until days after their absence was discovered, the start of the search was needlessly delayed. Precious time and a precious life were lost. Privacy concerns kept both the hotel where James and his family last stayed and the restaurant where they last dined from sharing credit card records, thus denying us for days important clues that would have helped narrow the initial search area.

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“Election Dejection”

November’s results obviously make it more of an uphill slog for legal reformers to win legislative victories; a roundup in Inside Counsel provides some details, quoting me along the way. (Mary Swanton, January). I venture a prediction that Democrats will use their new Congressional power to push legislation that would expand private causes of action in the employment field, a step that would gratify the plaintiffs’ bar and many union advocates alike. Contrary to an implication that the article may leave, private causes of action are at present very much alive and thriving in the wage and hour field, but they’re not (yet) authorized in the case of many other sorts of labor-law violations.

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AP on Wacky Warnings

The wire service reports on this year’s M-LAW competition (see Jan. 4) (David N. Goodman, “Keep People Out of Wash, Label Warns”, AP/MyWay.com, Jan. 5). Aside from the ones mentioned by Ted the other day, a notable entry was the second-prize winner, found on a personal watercraft, “Never use a lit match or open flame to check fuel level”. Burma-Shave got there decades earlier:

He lit a match/
To check gas tank/
That’s why/
They call him/
Skinless Frank

Bob Dorigo Jones’ new book Remove Child Before Folding is here.

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T-shirt battle before Seventh Circuit

“Why do people bring lawsuits for such trivialities?” Judge Richard Posner, a notoriously tough jurist, asked Dymkar during a three-judge hearing of the U.S. Court of Appeals for the 7th Circuit Thursday. “Have they been harmed, these ‘Gifties’?”

The Chicago Sun-Times covers a four-year class action battle brought by the mother of one of 24 students over their punishment for wearing a shirt perceived as insulting regular students (which the “gifted” students charmingly called “tards.”) The oral argument is indeed entertaining.

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The Founders and civil justice reform

Justinian Lane, unable to refute on the merits the idea that it might be worth experimenting with health courts to see if they improve medical care and medical justice, resorts to ad hominem:

I believe our founding fathers were some of the greatest men who ever lived. Through sweat and sacrifice, they founded the greatest country in the world. And they believed that the right for a plaintiff to seek a jury trial was so important as to be enshrined in the Bill of Rights.

I have nothing but respect and admiration for the noble men and women who have died and are dying to protect our Bill of Rights and our Constitution. I have nothing but derision for the ignominious men and women who are dying to butcher those documents for corporate gain.

Very stirring, if completely meaningless. I not only believe, but know for a fact, that our founding fathers created Article V of the Constitution, which permits amendments to correct problems created by the Constitution itself—such as, say, its abhorrent endorsement of involuntary servitude, or the poorly-thought-out presidential election process that resulted in the 1800 election snafu and the Twelfth Amendment.

But one need not go even this far. The real flaw of Lane’s thoughtless argument is that in 1791, the common-law right to a jury trial contemplated the idea of special juries. Special juries were used for complex commercial cases, for example; juries of women were used to determine the truth of claims of pregnancy. No constitutional amendment is needed for medical courts; they are well within the Seventh Amendment definition and the Founders’ conception of trial by jury. See generally Professor James Oldham’s book, Trial by Jury: The Seventh Amendment and Anglo-American Special Juries.

Read On…

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Alabama: a case of ethically failing upward?

“The state bar ordered that Stuart DuBose’s law license be suspended because of his role in an estate in which he collected a $1.2 million fee for writing a client’s will without ever meeting the dying man.” And DuBose faces a possibility of even sterner disciplinary action, such as a longer suspension or even disbarment, because the “Alabama Supreme Court ruled that the 45-day suspension wasn’t sufficient punishment for his actions.” However — and this is the part that really makes the story so perfect — DuBose is not exactly hurting professionally at the moment because voters in November elected him to be the circuit judge for Choctaw, Clarke and Washington counties despite publicity over the allegations. Although his official term does not begin until Jan. 15, he has already been sworn in. According to one newspaper account, disciplinary action could affect his ability to serve as judge. (“Jackson attorney still under ethics cloud takes oath early”, AP/AL.com, Dec. 23; Jim Cox, “Area lawyers once against, now for DuBose judgeship”, Clarke County Democrat, Dec. 14; Evan Carden, “DuBose takes oath to be circuit judge”, Clarke County Democrat, Dec. 28).

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