Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for 2007

Thank the lawyers: Tonya Bell at Unifest

We didn’t note it at the time, but in December, Valentina Chambers won $945 thousand in her suit against DC police from a Washington DC jury. You see, a scofflaw was leading police on a car chase, and hit Chambers’ car, injuring her, and, like trial lawyers want, the deep pocket was liable for not simply letting the criminal get away—though at least not liable for the $100 million Chambers sought. (Henri Cauvin, “D.C. Ordered to Pay in Police Chase”, Washington Post, Dec. 14). Such liability concerns cause DC to have the strictest police chase policy in the country, something we’ve noted has expensive consequences for the non-criminal element of the city.

Tonya Bell, who some say is a temporary worker for Marion Barry, was driving in Southeast D.C. Saturday night, apparently after a full day of smoking crack. She rear-ended a police car at 7:15 pm, and drove away instead of stopping: sure enough, DC police followed the trial-lawyer-driven policy and broke off the chase. Bell rewarded the officers’ diligence by laughingly driving her Volvo through a crowd of people at a street-fair a half hour later, injuring at least forty, before police threw a couple of motorbikes under her vehicle to stop it. Thank the lawyers for yet another wonderful contribution to public safety, though we won’t see any class actions against the trial bar for this one. (Robert E. Pierre, Sue Anne Pressley Montes and Yolanda Woodlee, “Driver Used Crack Before Festival Crash, D.C. Police Say”, Washington Post, Jun. 4).

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Don’t

More things that it’s really inadvisable to do if you’re a lawyer:

  • Tell a judge to her face in open court that you consider her “a few French fries short of a Happy Meal” (William Smith of McDermott Will & Emery LLP, facing possible exclusion from the right to practice in the bankruptcy court in question; Crain’s Chicago Business);

  • Show up in a hospital room to recruit as client a heavily medicated crash victim, then discourage him from going after the other driver’s personal assets in the case, without mentioning that the other driver is your own wife’s grandfather (Jeffrey Hark of Cherry Hill, N.J., referred for a state-bar ethical investigation although a legal-malpractice claim against him failed for lack of a showing of damages; NJLJ);

  • As part of a $59 million settlement of Benlate fungicide-damage cases, accept a secret $6 million side payment from defendant duPont in exchange for (among other services) agreeing to file no more cases (Roland R. St. Louis Jr. and Francisco R. Rodriguez of Miami, disbarred and given a two-year suspension respectively; NLJ, Elefant).
Earlier entries in this series: Apr. 23, 2007; Jan. 20, Apr. 12 and Apr. 28, 2006; Aug. 3, Sept. 13, 2005.

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U.K.: Recliner training?

Resting the wrong way in the U.K. Midlands:

…the men and women of the Greater Manchester fire service have been told they can only rest in prescribed reclining chairs – and only after they have been trained to use them.

Now, however, three experienced firemen are facing disciplinary action over “involvement in the use of unauthorised rest facilities”. …

Many fire stations have already been transformed by health and safety rules with the disappearance of the traditional fireman’s pole, deemed too dangerous to use.

(James Tozer, “Firemen feel the heat from health and safety for sleeping on the floor”, Daily Mail, Jun. 1).

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“Anatomy of a Mass Tort”

Experienced defense counsel Beck and Herrmann have a must-read post summarizing the lifecycle of a mass tort., touching on many of the themes Walter and I have covered in the past: the at-best parasitic irrelevance of the plaintiffs’ bar to the safety of the product (at worst, trial lawyers are counterproductive); the feeding frenzy of peripheral litigation and ambulance-chasing to sign up clients; the irrelevancies of game-show style trials to the ultimate issues of the case, much less public safety.

Beck and Herrmann’s model could certainly use some expansion; if anything, they understate the absurdity of the status quo. There’s no mention of the peripheral “consumer-fraud” class actions on behalf of the customers who have suffered no injury; the expense and harassment of discovery; the jockeying of the plaintiffs’ bar to plant misleading stories in the press to taint the jury; the efforts to use taxpayer resources of various trial-lawyer-friendly state attorney generals to harass the defendant; the lobbying by the plaintiffs’ bar to force the defendant to settle before plaintiffs have to test their complaints’ theories in the judicial system; the mass fraud by trial lawyers that almost invariably accompanies the mass tort.

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15 Minutes of Fame + Lawyers = Bankruptcy

For a brief period in 2004, Jessica Cutler was the hottest story in Washington. Cutler was the Senate aide who blogged at Washingtonienne about her sexual experiences with various Beltway insiders. After being exposed (pun intended), Cutler parlayed her notoriety into a six-figure book deal and Playboy photo shoot.

Unfortunately for Cutler, she had provided enough details in her blog for people to deduce the identity of some of her sexual partners. One of those, Robert Steinbuch, decided to sue her for $20 million for public disclosure of private facts (i.e., “invasion of privacy”) — thereby becoming only one of many recent examples of someone complaining about publicity… by filing a lawsuit that publicizes the acts he allegedly wants to keep secret.

In any case, Cutler began running into problems with her lawyers — namely, that they wanted her to pay them, and she had a different idea. We covered this in June 2006 (and see the Wonkette link in the comments). Now Cutler has filed for bankruptcy. Of course, we don’t know where all of her money went, but we know a good chunk of it went to her attorneys. Good luck collecting that $20 million, Mr. Steinbuch.

(As for collecting, Steinbuch had added some deep pockets to one of his lawsuits against Cutler — Hyperion Press (which published Cutler’s book), Disney (which owns Hyperion), HBO (which purchased the television rights to her story), and Time Warner (which owns HBO) — but that lawsuit, which Steinbuch filed in Arkansas, was dismissed in February on the grounds that it didn’t belong in Arkansas. Steinbuch has appealed, but his chances of success appear low, and his claims against HBO, Time Warner, and Disney are completely meritless anyway.)

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“Should they disbar TuberculEsq?”

David Giacalone has some thoughts on now-notorious Atlanta personal injury lawyer Andrew J. Speaker, who doesn’t seem to have lived up very well to the Lakoff-prescribed billing of “public protection attorney” (Jun. 1). But see: Elizabeth Whelan, in the New York Post, thinks the pillorying of Speaker’s decision to fly home has been overdone (“Free Andrew! Hysteria and the TB Case”, Jun. 2). Updates: Jul. 8 (some passengers sue Speaker), Dec. 2 (no one flying with him caught TB).

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CAFA: One plaintiff’s-side view

Victor M. Diaz, Jr., who has served as vice-chair of ATLA’s aviation section among other honors in representing the plaintiff’s bar, writes in Florida’s Daily Business Review taking issue with some of his colleagues’ doomsaying about the Class Action Fairness Act, which he says has proved “no calamity after all“:

More than two years after President Bush signed CAFA into law, these concerns are proving to be greatly exaggerated. CAFA should not be feared by the plaintiffs bar.

While the days of cases filed in remote, plaintiff-friendly state court venues may be over, CAFA has led to better representation of classes by plaintiffs attorneys and better outcomes for class members. On the whole, the potential shift of nearly all class actions to federal court has elevated the class action bar and meant better quality judicial review of corporate class-wide abuses.

As with Congress’s earlier reform of shareholder suits, the major effect seems to be not to choke off litigation, but to improve its average quality (cross-posted from Point of Law).

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Germans hesitate to join nanny parade

The German government, like others around the world, is being pressed by public health specialists to get into the business of reshaping citizens’ diets and hectoring the populace over its indulgent eating habits. However, reports The Scotsman, there are some distinctive obstacles to this happening, even aside from Chancellor Angela Merkel’s fondness for baking a cake at home every weekend:

…the legacy of Germany’s Nazi past is forcing the Bundesregierung, or federal government, to forget TV adverts giving millions advice on avoiding fatty foods and taking exercise.

The government is banned from buying advertising space on TV by the country’s own constitution, which was framed in the wake of the Second World War. Those who drew up the laws remembered how the Nazis were masters of using the cinema for propaganda and feared giving any government the same kind of power. They were also nervous that governments might use advertising leverage to put pressure on broadcasters.

One insider quipped: “The last time we had a non-smoking vegetarian who wanted to tell us what to do, it wasn’t a happy experience.”

(Murdo MacLeod, “German fatties fear the wurst”, The Scotsman, May 13).

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