Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for May, 2013

Man gets into drunken fight with friend, is injured

And now William Lawler is suing the Amarillo, Tex. sports bar that served both of them earlier in the evening, saying it should have cut them off. The suit, which seeks $1 million or more,

also claims the two had an “amiable relationship, and would have never fought were it not for their extreme level of inebriation.”

Lawler’s lawyer Ryan Turman said he thinks they have a solid case.

“We feel like we’ve got solid facts. We feel like Pink is responsible,” he said. “You just trust a jury to do what is right on these.”

He said the lawsuit was filed in accordance with the Dram Shop Act.

[Amarillo Globe-News, more, Jon Mark Beilue column; & welcome Above the Law readers]

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“Oregon police officer fired after drunken driving crash sues city, cites disabilities law”

“A police officer fired for driving drunk in an unmarked police car while off-duty has filed a $6 million lawsuit against the city of Gresham, the police chief and others, alleging his rights were violated under the Americans with Disabilities Act. The lawsuit filed in Portland alleged the officer, Jason Servo, was suffering from alcoholism, a recognized disability under the act, and shouldn’t have been dismissed.” [AP] In my book The Excuse Factory I sketched some of the history of how alcoholism (at least when the subject declares a willingness to participate in rehab) came to be protected under the ADA.

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Judge Posner and the elusive confidential informant

To allege scienter (intent or knowledge of wrongdoing) in securities fraud cases, lawyers sometimes avow to the court that they have one or more confidential sources who tipped them off to the wrongdoing. If the court accepts this story, they may keep a case alive for which there would otherwise be no or inadequate evidence. Trouble is, the confidential informants can be, if not entirely a mirage, then flimsier on inspection than the court might have assumed. Cory Andrews of WLF tells of a recent ruling by Judge Richard Posner in a case called City of Livonia Employees’ Retirement System v. Boeing:

Seeking hundreds of millions of dollars in damages, plaintiffs filed a putative class action alleging that Boeing Company, along with its CEO and the head of its commercial aircraft division, committed securities fraud in violation of federal law. The district judge dismissed the complaint for failing to allege sufficient facts to properly plead the requisite scienter for fraud. Not to be deterred, plaintiffs promptly filed an amended complaint, but this time with detailed bombshell revelations from a confidential source. Ultimately, however, the allegations in the amended complaint could not withstand even the slightest scrutiny.

As Posner describes it:

The plaintiffs’ lawyers had made confident assurances in their complaint about a confidential source — their only barrier to dismissal of their suit — even though none of the lawyers had spoken to the source and their investigator acknowledged that she couldn’t verify what (according to her) he had told her.

Their failure to inquire further puts one in mind of ostrich tactics —of failing to inquire for fear that the inquiry might reveal stronger evidence of their scienter regarding the authenticity of the confidential source than the flimsy evidence of scienter they were able to marshal against Boeing.

Noting that the same law firm [Robbins Geller Rudman & Dowd] had been accused of “similar conduct” in three other reported cases, Posner [on behalf of a unanimous panel] remanded the matter back to the district judge, who would be in a better position to calculate a dollar amount for Rule 11 sanctions.

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Scales of justice: lawyer represented fish after its demise

A noted Swiss animal rights lawyer who’s campaigning for wider assignment of lawyers to represent animals’ interests “once represented a dead fish that had been caught, killed, and eaten” [Global Legal Post via John Steele, Legal Ethics Forum; title courtesy @KenParish1]

P.S. From last year (but new to us), this Jon Stewart segment on the unsuccessful PETA lawsuit against Sea World for holding whales in “involuntary servitude.”

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Manhattan attorney admits “addiction to lying”

A judicial panel has given Nathaniel Weisel a nine-month suspension for his sins. Perhaps because it is too clear that not all addictions go away in nine months, Weisel (besides the suspension) was ordered to take the ethics portion of the bar exam and ‘appropriately address his pathological behavior’ prior to his reinstatement.” [Andrew Keshner, New York Law Journal; Jessica Dye, Reuters] The pathological behavior, as described by NYLJ, included the following:

In September 2009, a client of Weisel asked him to start a civil action, which he did not do. To assure the client the matter was being addressed, Weisel created a fraudulent settlement agreement, fictional index number, caption and settlement amount. He randomly chose an opposing counsel and forged his signature on the document. The fabrication was not filed in court. Before the client discovered the settlement had been fabricated, Weisel filed a valid Small Claims action. After the purportedly opposing counsel learned his signature had been forged, Weisel wrote him an apology and said he acted to give himself more time to properly file the action.

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Parents check infant out of hospital against medical advice, CPS swoops down

They were seeking a second opinion on whether the baby needed heart surgery, and didn’t trust the care they were getting from Sutter Memorial Hospital in Sacramento, so parents Anna and Alex Nikolayev went over to Kaiser Permanente to get a second opinion. Police and Child Protective Services then showed up at their house to seize five-month-old Sammy. “A judge ordered Monday that the child be moved to Stanford Medical Center in Palo Alto, a decision which the Nikolayevs consider a win,” and also ordered that they obey all medical advice. [KSL, Today, Good Morning America (auto-plays)]

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May 2 roundup

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You were wrong to pay out that money. Now disgorge it.

On Ralph Lauren’s agreement with prosecutors to settle charges under the Foreign Corrupt Practices Act that its agents improperly bribed officials in Argentina to allow goods to move through trade channels: “Disgorge is a curious description. The $593,000 is the amount they paid out in bribes, not the amount they took in. Disgorge usually refers to the fruits of crime, but instead refers here to the perverse perspective of our government in keeping American corporations pure as the driven snow while minor warlords elsewhere demand their piece of the pie. Whether it’s money in or out, gained or lost, or even neither existing nor realized, it’s all money the government demands be disgorged.” [Scott Greenfield] More on the case: Lawrence Cunningham, FCPA Professor.

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