Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for 2008

More tweaks to the site

As we’ve begun filling in tags to the thousands of posts, the “tag cloud” became less and less interesting and more and more distracting on the front page.  We’ve moved it to a back page and replaced it with three hand-made lists of tags:

  • Categories, with tags roughly corresponding to the categories from the old website;
  • Favorite topics, featuring tags corresponding to popular reader favorites from years past and today; and
  • Good copy, attorneys and law firms you want to read about.

Are we leaving anything out in those tag lists you’d like to see there?

Don’t hesitate to drop me an e-mail with a link if you see something that was improperly auto-tagged or is missing a tag that would be useful.

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Stripper: getting tipsy was part of my job

Whatever happened to the old ginger-ale “champagne” ruse? “A woman contends that her job as a stripper caused her to have a one-car wreck on her way home from work last year, according to a lawsuit filed in Jefferson County Circuit Court. Patsy Hamaker’s suit says part of her job as a dancer at The Furnace club in Birmingham involved encouraging customers to buy her alcoholic drinks.” (Eric Velasco, “Stripper’s suit in Jefferson County court says her job led to wreck, injuries”, Birmingham News, May 27).

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Another thought on Waddah Mustapha v. Culligan of Canada, the fly-in-bottled-water case

The Canadian Supreme Court overturned the lower court C$341,000 decision in Mustapha v. Culligan of Canada, but it’s worth noting that the result would have been different in the United States. To recap, Waddah “Martin” Mustapha saw (but did not consume) a fly in a bottled water. As Yoni Goldstein memorably recounts:

[Mustapha] proceeded to vomit all over his house, and later experienced problems drinking anything with water in it, showering (because that also involves water) and going to work and having sex (where, presumably, water was involved in some major, incapacitating way).

Culligan did not contest that it was negligent; it did not even contest that the sight of the fly caused Mustapha’s injuries. It simply argued that Mustapha’s idiosyncratic reaction was not its concern, and that it should only be liable for the reaction of the reasonable person who had seen a fly in a bottle of water. In the US, that argument does not fly: basic 1L Torts teaches the “eggshell plaintiff” rule–you take the plaintiff as you find him or her. Canada differs. “The law expects reasonable fortitude and robustness of its citizens and will not impose liability for the exceptional frailty of certain individuals.” Canada is thus less prone to the sort of absurd claims that Mustapha raised than the United States is, as, if the courts follow the law, there is less incentive to exaggerate the scope of injury. In a US case, the defendant would have to engage in expensive pre-trial discovery to demonstrate that Mustapha’s psychological disorders were not caused by the incident, and would still have to go to a jury if Mustapha could produce an expert for hire who would testify differently. According to the Canadian Supreme Court, the appropriate approach is to simply use common sense and toss the case. But, as the lower court decision shows, there are certainly some in the judiciary who wish to move the Canadian model closer to the disastrous American one.

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Barack Obama and tort reform: is he really bipartisan?

In an interview of Senator Barack Obama on Fox News, Chris Wallace questioned Obama’s claims of being a post-partisan leader who reached across the aisle.  In response, Obama identified his support of the Class Action Fairness Act tort reform bill.  Is this persuasive evidence of bipartisan behavior?  I explore the question in today’s Examiner.

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New features: browse by tag, related posts

Continuing our WordPress site overhaul, we’ve added two new ways to navigate through Overlawyered to find relevant past material.

Our new browse by tag page lets you zero in quickly on posts that relate to your topic of interest or locality. We’ve assembled an uneasy mix of the old post categories, automatically generated new tags on old posts (e.g., “Detroit” will yield stories linking to the Detroit News even when there is no local angle) and tags newly selected by Ted and me, with the balance, we assume, gradually shifting toward the latter over time. We’ve tended to avoid autotagging the most common terms as well as the very largest cities and states; remember that you can still try our regular search function.

And here’s a neat trick: by tinkering with tag URLs, you can combine tags to find a subset of posts with overlapping tags. For example, the URL http://overlawyered.com/tag/illinois+family-law/ calls up all posts that are tagged with both “Illinois” and “family law”. (Note the required placement of the plus sign and hyphen(s).) Likewise with “Bill Lerach” + “politics” or whatever other combination of tags you like.

Finally, we’re experimenting on individual posts with suggested “Related posts”. These are auto-generated by the tag program based on shared tags, so they will inevitably be less than perfect, but may make a helpful place to start.

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“Whatever is Greek, wherever in the world, we want back.”

Why does the idea of cultural property have so many advocates? “It seems to establish a bulwark against the plunder of antiquities.” And yet how quickly it’s turned into a way of looting premodern artifacts from Western owners whose claim of title is stronger than that of foreign governments or indigenous/Indian tribes. “But if cultural property really did exist, the Enlightenment museum would be an example of it: an institution that evolved, almost uniquely, out of Western civilization. And the cultural property movement could be seen as a persistent attempt to undermine it. And take illicit possession.” (Edward Rothstein, “Antiquities, the World Is Your Homeland”, New York Times, May 27).

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Mark Steyn on the suing-OPEC bill

“[Then Congress] went off and passed by 324 to 82 votes the so-called NOPEC bill. The NOPEC bill is, in effect, a suit against OPEC, which, if I recall correctly, stands for the Oil Price-Exploiting Club. “No War For Oil!,” as the bumper stickers say. But a massive suit for oil — now that’s the American way! …

“Congress hauls Big Oil execs in for the dinner-theatre version of a Soviet show trial and then passes irrelevant poseur legislation like the NOPEC bill. Plus ca change you can believe in, plus c’est la meme chose. The NOPEC bill is really the NO PECS bill — a waste of photocopier paper passed by what C. S. Lewis called ‘men without chests’.” (“Fill Her Up with Hot Air”, National Review Online, May 24)(via Lindgren @ Volokh).

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Kentucky fen-phen judge bought silence of plaintiff objector

Judge Joseph Bamberger rubber-stamped a Kentucky fen-phen settlement agreement where plaintiffs’ attorneys cheated class members out of tens of millions of dollars. In the process, his former law partner was paid millions by the settlement, which he used to buy a Florida house with Bamberger, and Bamberger himself received a $5000/month sinecure. At trial of the three lead attorneys yesterday, jurors were shown a videotape where one of the plaintiffs questioned the judge on how low her settlement was and the validity of her release; the videotape shows Bamberger browbeating the plaintiff, but then awarding her an additional $100,000 and a $1200/month life annuity on the condition that she cease talking about the settlement and her objections to it. (Jim Hannah, “Judge dressed down victim”, Cincinnati Enquirer, May 24) (h/t R.U.). For some reason yet undisclosed by prosecutors, Bamberger is on the witness stand rather than in the dock with Gallion, Mills, and Cunningham.

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Grand Theft Auto: Class Action Settlement – $26,505 for the unrepresented class, $1 million fee request

We now know how many people signed up for the Grand Theft Auto: San Andreas class action settlement out of the millions of members in the purported class.

Tier 1 (up to $35.00) (no exchange required): 416
Tier 2 (up to $17.50) (exchange required): 22
Tier 3 ($10.00) (exchange required): 131
Tier 4 ($5.00) (no exchange required): 2,050
Disc Exchange w/o cash: 57

2676 total claimants, receiving a total cash value of at most $26,505, though likely even less than that, given that the plaintiffs’ attorneys record no actual cash distribution.

The seven “representative” class members are asking for approval to receive another $24,500, or nearly half of the total cash recovery.

Of course, as we’ve discussed, none of these people had a legitimate cause of action or suffered any legally cognizable injury. But how much are the plaintiffs’ attorneys (from thirteen different offices of twelve different law firms!) asking for for this travesty of a lawsuit and settlement–one that was entirely redundant of the taxpayer-funded investigation conducted by the Los Angeles district attorney? They claim their time devoted to the litigation was worth $1,317,433, but are “generously” claiming a 28% discount for a total fees-and-costs request of $1 million.

Recognizing that this 3774% contingent fee looks fishy to the least scrutinizing of judges applying Rule 23 review, the plaintiffs have sought to inflate the appearance of accomplishment through a $870,000 cy pres award to the National PTA and ESRB. (As I’ve discussed, cy pres awards that do not directly benefit class members should not be used to justify fee awards.) They also inflate the award by claiming that the costs of notice, administration and disk replacement should be attributed to the size of the accomplished result, thus puffing matters up to over $2 million, consisting nearly entirely of empty calories for the plaintiffs they purport to be representing.

Alas, I was the only class member to docket a formal objection to this rip-off. (While it was my idea to object, I can take no credit for the objection brief, which was written by my attorney, Larry Schonbrun.) On Thursday, the plaintiffs’ attorneys filed a brief defending the settlement, with many cites to Overlawyered as ad hominem attacks on the objection. The court’s hearing is June 25.

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