Archive for 2008

“That’s why I didn’t become a trial lawyer”

Democratic front-runner (if it’s okay to call him that now) Barack Obama tells a Newton, Iowa audience about his early decisions to pursue civil rights, community organizing and public office rather than more lucrative legal specialties, and is blasted in parts of the lefty blogosphere for the implied dig at John Edwards. (Shailagh Murray, Washington Post “The Trail”, Dec. 30; Kos, TPM, Kia Franklin, etc.) Per the Washington Post’s Chris Cillizza, “Obama is starting to use the term ‘trial lawyer’ more often on the stump to describe Edwards, perhaps hoping to capitalize on the negative associations many voters have with that particular profession.” (“The Trail”, Dec. 31).

P.S. Some highlights of our earlier Obama coverage: Aug. 5, 2004 (“Anyone who denies there’s a crisis with medical malpractice insurance is probably a trial lawyer”); Apr. 10, 2007 (making inroads nonetheless on Edwards’ trial-lawyer donor base; per Legal Times, “Despite Obama’s silence on the issues trial lawyers care about, those who support him say they are confident he will back trial lawyers when the time comes”); Jul. 31 and Aug. 5 (auditions at AAJ/ATLA convention). P.P.S. Plus Ted at Point of Law a year back (“far from convinced” that Obama will cross the trial bar, despite his vote for the Class Action Fairness Act).

“Son seeks estate of mother he killed”

After Joshua Hoge stabbed his mother and brother to death with a butcher knife, he was found not guilty by reason of insanity and committed to Washington’s Western State Hospital. His mother’s estate then sued King County and won $800,000 “when it was determined that a public-health clinic had failed to give Hoge his medication and was partially responsible for the slayings.” Now Hoge is suing to obtain part of his mother’s estate, which would allow him to capture some of the lawsuit winnings. A Washington statute restricts killers from profiting by their crimes, but by its terms applies to “willful” killings. Besides, says Jean O’Laughlin, Hoge’s attorney, her client isn’t covered because he was found not guilty. A Seattle University associate professor of Law, John Strait, agrees: “For all intents and purposes, there is no crime. We don’t punish people for being really sick. We don’t impose criminal culpability on people who are mentally ill,” he said. “It’s nutty logic.” (Natalie Singer, Seattle Times, Jan. 3). I wrote a couple of years ago about Washington state’s unusually broad assignment of liability to public agencies for crime and other private misconduct.

“Lawyer installs shark tank in office”

It started as a joke, but Bozeman, Mont. attorney Christopher Gillette is going through with the ambitious aquarium installation, whose saltwater inhabitants will include venomous fish as well as sharks. [Bozeman Daily Chronicle; AP/El Paso Times] In the 1980s the now well-known law firm of Bickel & Brewer adopted the snake exhibit at the Dallas Zoo. (Mark Donald, “Rambo Justice”, Dallas Observer, Mar. 19, 1998).

January 4 roundup

  • Housekeeping service in Florida proclaims, “We Speak English”. So will they get sued? [Smerconish/Phila. Daily News]
  • Update: Dad who long ago walked out on his family won’t get chunk of estranged son’s $2.9 million 9/11 fund benefit [NY Post (link fixed now); earlier]
  • Did Illinois state’s attorneys advise Marine sergeant complaining of car vandalism that there wasn’t much point trying to recover from the suspected offender since he was a lawyer? [Blackfive via Zincavage and many readers; Kass/Tribune] And what kind of trouble might the lawyer be in if he suggested slipping the repair costs along to an insurer? [Patterico commenters, Goldberg/NRO Corner correspondent] More: Bainbridge.
  • Not long after American Lawyer pronounces the demise of securities class actions, we learn they may be back on a cyclical upswing [August TAL; new Stanford Clearinghouse]
  • If rising tide of outrage leads to abolition of peremptory challenges, many lawyers won’t have anyone to blame but themselves [Reed]
  • Brooklyn judge’s presenting of box of candy to plaintiff among grounds for reversal of $14 million brain-damaged infant verdict [NYLJ]
  • Yet more health privacy madness: “HIPAA is adversely affecting our ability to conduct biomedical research” [Reuters on JAMA study via Kevin MD; relatedly, Karvounis/HealthBeat]
  • People kept tearing down no-swimming signs at much-used park in Bellingham, Wash., and you know what’s going to happen next without our having to tell you [AP/Seattle Times]
  • Two Illinois judges in drunk-driving accident that broke other driver’s leg draw mere reprimand with “no consequences other than public embarrassment” [Post-Dispatch]
  • Suit against Avvo lawyer-rating suit dismissed on First Amendment grounds [Seattle Times, Post-Intelligencer; earlier]
  • Saves her friend’s life, then sues her [seven years ago on Overlawyered]

Paragraph of the day

Certainly some corporate defendants deserve to take it in the shorts. Judge Easterbrook, in affirming a well-deserved $16 million FTC fine against a late-night infomercial purveyor of fraud, opines:

For the Q-Ray Ionized Bracelet, by contrast, all statements about how the product works—Q-Rays, ionization, enhancing the flow of bio-energy, and the like—are blather. Defendants might as well have said: “Beneficent creatures from the 17th Dimension use this bracelet as a beacon to locate people who need pain relief, and whisk them off to their homeworld every night to provide help in ways unknown to our science.”

FTC v. QT, Inc. (via Lattman).

Richard Neely and arbitration (and the godless bloodsuckers?)

In 2006, former West Virginia judge and justice Richard Neely wrote an article called “Arbitration and the Godless Bloodsuckers” (reprinted at the anti-consumer Consumerist) making a sensational claim: he had served as an arbitrator for the National Arbitration Forum, but because of his rulings denying attorneys’ fees, had been blacklisted from further arbitration proceedings because the “godless bloodsucker” banks (no, really, those are his words) had decided he was an “unacceptable” arbitrator. As part of the litigation lobby’s war on consumer choice in seeking legislation to force consumers to litigate even if they wish the opportunity for lower prices through agreeing to mandatory binding arbitration (see the Overlawyered section on arbitration), the claims have been repeated on multiple occasions, in Congressional testimony, in newspaper and magazine articles, in blogs, and even in the Overlawyered comments. Turns out, according to a response made by the National Arbitration Forum, that Judge Neely has made some claims that weren’t true:

  • Contrary to Neely’s claims, he was never “struck” from any case by any party.
  • At least under NAF rules, a party cannot unilaterally select an arbitrator: the two sides must agree, or, in the alternative, each select an arbitrator who will in turn mutually agree upon a third arbitrator. (Code of Procedure Rule 21.) Parties can strike an arbitrator for bias—for example, perhaps one of the arbitrators has announced that a class of parties are “godless bloodsuckers.” But this right applies equally to consumers and merchants.
  • Neely claimed incorrectly that a party defaulting could be liable for more than they would under the civil justice system. But arbitration participants have more procedural protections in the case of default than those operating in the civil justice system–there is no “default” in arbitration. Rather, the arbitrator has to decide the case on the merits, even without the participation of the customer. Given the fact that the vast majority of debt collections in court are resolved by default, the typical consumer comes out far ahead in arbitration.
  • Neely proposed a reform that arbitrators be required to disclose conflicts of interest. But arbitrators are already required to disclose such conflicts.

Read the whole thing. Neely (who ruled on the merits 100% of the time for banks against their customers in the two debt collection cases he decided) was apparently so upset by his experience that he signed a new agreement with NAF after the events he claims to describe transpired. One wonders: has the plaintiffs’ bar retained Neely as a consultant on the issue, and he decided he could make more money bad-mouthing arbitration than as an arbitrator? One will never know—unless Neely discloses his conflicts of interest.

Richard Neely’s previous claim to fame was stating, while Chief Justice of the West Virginia Supreme Court, “As long as I am allowed to redistribute wealth from out-of-state companies to in-state plaintiffs, I shall continue to do so.” He’s had somewhat less success doing so as a plaintiffs’ attorney (June 2002).

Model’s suit: You used the video you took of me

A 37-year-old Jane Doe (who claims to be the host of a national cable tv program) agreed to be videoed rolling around in a bed “looking excited” for $200 in November, and was disturbed to see the results on a YouTube advertising campaign with obviously dubbed orgasmic moans. The punchline in the ad (probably NSFW if your volume is on): “Jewelry works every time.” Or, as my feminist girlfriend grouses every time she sees a tv jewelry ad with far subtler implications, “Your wife is a whore who will only put out for shiny objects.” Cf. also this YouTube copyright violation from Family Guy (NSFW), soon to be taken down by Fox.

Through her attorney, Kevin Mulhearn, she’s sued Szul Jewelers for $5 million. Mulhearn claims there’s no release, which while implausible, may be true. If so, she has a point, though the ad damnum claim is ludicrous: and far more people are going to watch the supposedly image-damaging video now that Mulhearn has gone to the press. And, of course, she didn’t have to roll around on the bed in the first place. (One hopes that I’m not aiding and abetting a publicity stunt for the jeweler.) [Daily News; AP/New York Times]

Divorce law in the Northeast

Prompted by our post of yesterday about Virginia lawyer-legislators, commenter Hans Bader at his own blog nominates New York, Massachusetts and New Jersey as examples of how bad matrimonial law can get: “the more lawyers are in a state legislature, the more unfair a state’s divorce laws tend to be”. (OpenMarket.org., Jan. 2). Plus: our family law archives are here.

January 7: Vioxx Settlement panel at AEI

Please register for this event online at http://www.aei.org/event1626.

The AEI Legal Center for the Public Interest and the Federalist Society present:

The Vioxx Settlement

Monday, January 7, 2008, 12:00 p.m.–2:00 p.m.
Wohlstetter Conference Center, Twelfth Floor, AEI
1150 Seventeenth Street, N.W., Washington, D.C. 20036

In 2004, Merck withdrew its pain reliever Vioxx from the market because of new studies showing increased cardiovascular risk. Merck announced that it would not settle any of the tens of thousands of Vioxx lawsuits filed, and set aside over a billion dollars to litigate cases without reserving a penny for damages. After a $254 million verdict in the first Vioxx trial in 2005, some observers predicted over $25 billion in liability for the company. Fifteen trials later, Merck and the plaintiffs’ attorneys announced a settlement of the outstanding personal injury litigation—for under $5 billion. Merck stock rose after the announcement, and is now higher than before it withdrew Vioxx from the market. But some law professors are arguing that a new and unusual provision in the settlement raises ethical concerns.

Why did Merck settle? And why was the settlement for so much less than originally anticipated? Is the Merck settlement different from the Wyeth fen-phen settlement, which was originally announced as a $3.75 billion settlement, but has so far cost more than $20 billion? Will the settlement stand up under legal challenge, and what will remain of the Vioxx litigation if it does?

At this event cosponsored by AEI and the Federalist Society, a panel of experts will explore these and other questions. Speakers include Vanderbilt law professor Richard Nagareda, author of Mass Torts in a World of Settlement; Virginia legal ethics professor George Cohen; author and leading pharmaceutical mass torts defense attorney Mark Herrmann; Andy Birchfield, a member of the Vioxx Plaintiffs’ Steering Committee; and Ted Frank, director of the AEI Legal Center for the Public Interest. AEI resident scholar John E. Calfee will moderate.

11:45 a.m.
Registration and Lunch

12:00 p.m.
Panelists:
Andy Birchfield, Beasley Allen
George Cohen, University of Virginia School of Law
Ted Frank, AEI
Mark Herrmann, Jones Day
Richard Nagareda, Vanderbilt University Law School

Moderator:
John E. Calfee, AEI

2:00 p.m.
Adjournment

January 3 roundup

  • Surely not something 007 would do: judge reproaches Sean Connery and opponent neighbor over “slash-and-burn” litigation tactics in long-running townhouse dispute [NYLJ, NYTimes]
  • Famed attorney Mark Geragos suing San Francisco Zoo on behalf of tiger maulees [AP/KPIX, Mercury-News, SFist]
  • Clients, lawyers who formerly worked for it have many complaints ethical and otherwise about heavy-advertising San Diego law firm Pacific Law Center [Union-Tribune via San Diego Injury Board]
  • Who knew the demanding workload of law students and federal-judge clerks left any time for (allegedly) tying up, robbing and torturing boyfriends? [Reynolds; Lat]
  • The Scruggs et al prosecution continues to evolve and develop, but at present we haven’t much to add to the energetic threesome of sites that have been leading the news hunt [Rossmiller, Lotus/Folo, YallPolitics]
  • UK man wrongly accused of rape will get public compensation, but minus a fee for bed and board at the prison [Daily Mail]
  • Under Louisville’s new smoking ban, business owners are required to call cops if customers refuse to stop smoking inside [Catallaxy]
  • Garry Wise takes issue with our comments on free speech in Canada, but we may be talking past each other since we never got to the question whether the proper fix is a motion by columnist Steyn to quash the dangerous inquiry [Wise law blog]
  • Injury suits filed against little kids? “It does happen.” More on the Scott Swimm ski-collision case [L.A. Times/Chicago Tribune; earlier]
  • Hope he’ll reconsider: David Giacalone says he’s weary of the legal-ethics beat he’s covered so well, and intends to leave it behind [f/k/a]