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| ARCHIVE -- JUNE 2000 (III) |
June 30-July 2 --
"Backstage at News of the Weird". Chuck Shepherd
writes the sublime "News of the Weird" feature, which is syndicated weekly
to major papers and alternative weeklies nationwide. From time to
time he's asked which are "his favorite online scanning sites for weird
news". This site came in #4 of 6 -- you'll want to check out the
whole list. (June
19).
Remarkable stories from the legal system turn up nearly every week both
in "News of the Weird" and in the more recently launched "Backstage" column.
Here's one from the same June 19 number: "An Adel, Ga., man sued the maker
of Liquid Fire drain cleaner for this injury (and follow this closely):
LF comes in a special bottle with skull and crossbones and many warnings,
but our guy thought, on his own that the bottle's spout just might
drip, so he poured the contents into his own bottle (which he thought would
be drip-proof), whose packaging wasn't able to withstand the LF and began
to disintegrate immediately, causing the contents to spill onto his leg.
So now he wants $100k for that."
June 30-July 2 --
Supreme Court vindicates Boy Scouts' freedom. Matthew
Berry, an attorney with the Institute for Justice who helped write an amicus
brief for Gays and Lesbians for Individual Liberty, explains why the principle
of freedom of association that protects the Boy Scouts from government
dictation of its membership is also crucial in protecting the freedom of
gays and lesbians ("Free To Be Us Alone", Legal Times, April 24)
(case, Boy
Scouts of America et al v. Dale, at FindLaw). See also Independent
Gay Forum entries on the subject by Tom
Palmer and Stephen
H. Miller.
June 30-July 2 --
"DOJ's Got the Antitrust Itch". After a decade or
two of quiescence, antitrust is on the rampage again, led by Joel Klein
and other officials at the Justice Department's Antitrust Division.
(Declan McCullagh, Wired News, June
28).
June 30-July 2 --
"Being a Lefty Has Its Ups and Downs". Letter to the editor
published in yesterday's New York Times from our editor runs as
follows: "To the Editor: At the City Council's hearing on whether left-handed
people should be protected by anti-discrimination law (Elizabeth Bumiller,
"Council Urged to End a Most Sinister Bias", June 22), a high school student
called it discriminatory that banisters and handrails are often on the
right side of public stairwells -- at least from the perspective of someone
climbing up. But people walk on stairs in both directions. It would
seem the same stairwell that oppressively discriminates against lefties
on the way up also discriminates against righties on the way down. Can
they sue, too?
"The student also asserted that 'societal discrimination results in
the death of the left-handed population an average of 14 years earlier
than the right-handed population.' However, the study that purported
to reveal such a gap was soon refuted. A 1993
study by the National Institute on Aging found no increase in mortality
associated with handedness -- not surprisingly, since insurance actuaries
would long ago have made it their business to uncover such a correlation."
-- Very truly yours, etc. (no longer online) (more on life expectancy
controversy: APA
Monitor, Psychological
Bulletin, Am
Journal Epidem -- via Dr.
Dave and Dee).
Postscript: Scott Shuger in Slate "Today's
Papers" promptly took a whack at us over the above letter, claiming
we didn't realize that big stairwells at places like high schools have
two-way traffic patterns where people keep to the right, leaving lefties
without a rail for the handy hand whether headed up or down. But
if anything, this proves our point that the issue isn't, as had been claimed,
the insensitive decision to place handrails on one side but not the other:
typically these larger stairwells have handrails on both sides. Instead
the broader culprit for those who wish to steady themselves with their
left hand is the walk-on-the-right convention. Had the advocate of
an antidiscrimination law acknowledged that point, however, much of the
steam would have gone out of her argument, since few in her audience would
have been inclined to view the walk-on-the-right convention as fixable
"discrimination". Nor is there anything in the original coverage
to indicate that her gripe was at the absence of center rails, which have
inconveniences of their own.
June 29 -- Failure
to warn about bad neighborhoods. "A Florida jury has awarded
$5.2 million to the family of a slain tourist after finding that Alamo
Rent-A-Car failed to warn the victim and her husband about a high-crime
area near Miami." Dutch tourists Gerrit and Tosca Dieperink, according
to the National Law Journal, "rented an Alamo car in Tampa and planned
to drop it off in Miami". When they stopped in the Liberty City area
of Miami to ask directions, they were targeted by robbers who recognized
the car as rented, and Mrs. Dieperink was shot and killed. Lawyers
for her survivors sued Alamo, saying it was negligent for the company not
to have warned customers -- even customers renting in Tampa, across the
state -- of the perilousness of the Liberty City neighborhood, where there'd
been numerous previous attacks on rental car patrons. After circuit
judge Phil Bloom instructed the jury that Alamo had a duty to warn its
customers of foreseeable criminal conduct, jurors took only an hour of
deliberations to find the company liable, following a seven-day trial.
(Bill Rankin, "Alamo's Costly Failure to Warn", National Law Journal,
May 22; Susan R. Miller, "Trail of Tears", Miami Daily Business Review,
May 8.)
Which of course raises the question: how many different kinds of legal
trouble would Alamo have gotten into if it had warned its customers
to stay out of certain neighborhoods? Numerous businesses have come
under legal fire for discriminating against certain parts of town in dispatching
service or delivery crews ("pizza redlining"); one of the more recent suits
was filed by a civil rights group against online home-delivery service
Kozmo.com, which offers to bring round its video, CD and food items in
only some neighborhoods in Washington, D.C., mostly in affluent Northwest.
(Elliot Zaret & Brock N. Meeks, "Kozmo’s digital dividing lines", MSNBC/ZDNet,
April
12; Martha M. Hamilton, "Web Retailer Kozmo Accused of Redlining",
Washington Post, April
14).
June 29 -- "Angela's
Ashes" suit. Frank McCourt (Angela's
Ashes, 'Tis)
and his brother Malachy (A
Monk Swimming) have had a runaway success with their memoirs of
growing up poor in Ireland and emigrating to America (4 million copies
have sold of Angela's alone). Now they're being sued
by Mike Houlihan, "who in the early 1980s raised $20,750 to stage and produce
a McCourt brothers play called 'A Couple of Blaguards,'" also based on
their early life. The play had only modest success, though it has
begun to be revived frequently with the success of the memoir books.
Mr. Houlihan says he and several others are entitled to 40 percent of the
profits from Angela's Ashes and the other memoirs because they are
a "subsidiary work" of the play. "That would be a nice piece of money,
wouldn't it?" says Frank McCourt, who says his old associate "has hopped
on America's favorite form of transportation -- the bandwagon". (Joseph
T. Hallinan, "Backers of McCourt's Old Play Say They Are Due Royalties",
Wall
Street Journal, June
6 (fee)).
June 29 -- "Trying
a Case To the Two Minute Mind". California attorney
Mark Pulliam passes this one on: a recent brochure from the San Diego Trial
Lawyers Association offered a sale on educational videos for practicing
litigators, of which one, by Craig McClellan, Esq., was entitled “Trying
a Case To the Two Minute Mind; aka Trial by Sound Bite” (worth one hour
in continuing legal education credits). According to the brochure,
“The presentation shows how to streamline each element of a trial based
on the fact that most jurors are used to getting a complete story within
a two minute maximum segment on the evening news. This video demonstrates
the effectiveness of visual aids, impact words and even colors, to influence
the juror’s perception and thought process in the least amount of time.”
June 28 -- Oracle
did it. Today's Wall Street Journal reports that
the big software maker and Microsoft
rival has acknowledged it was the client that hired detective firm Investigative
Group International Inc. for an elaborate yearlong operation to gather
dirt on policy groups allied with Microsoft; the detective firm then offered
to pay maintenance workers for at least one of the groups' trash (see June
26). "The IGI investigator who led the company's Microsoft project,
Robert M. Walters, 61 years old, resigned Friday after he was named in
stories about the case." Oracle claims to have no knowledge of or
involvement with illegalities -- buying trash isn't in itself necessarily
unlawful -- and IGI also says it obeys the law. (Glenn R. Simpson
and Ted Bridis, "Oracle Admits It Hired Agency To Investigate Allies of
Microsoft", June
28 (fee))
June 28 -- Born
to regulate. Opponents say the Occupational Safety and
Health Administration's "ergonomics" proposals would tie America's employers
in knots in the name of protecting workers from carpal tunnel syndrome
and other repetitive motion injuries (see March
17), and resistance from the business community is stiff enough that
the regs ran into a roadblock in the
Senate last week. However, Ramesh Ponnuru at National Review
Online reports that "Marthe Kent, OSHA's director of safety standards
program and head of the ergonomics effort, couldn't be happier at her job.
'I like having a very direct and very powerful impact on worker safety
and health,' she recently told The
Synergist, a newsletter of the American
Industrial Hygiene Association. 'If you put out a reg, it matters.
I think that's really where the thrill comes from. And it is a thrill;
it's a high.' Later in the article, she adds, 'I love it; I absolutely
love it. I was born to regulate. I don't know why, but that's very true.
So as long as I'm regulating, I'm happy.'" (Ramesh Ponnuru, "The Ergonomics
of Joy" (second item), National Review Online Washington Bulletin,
June
26).
See also "Senate Blocks Ergonomic Safety Standards", Reuters/Excite,
June
22; Murray Weidenbaum, "Workplace stress is declining. Does OSHA notice?",
Christian
Science Monitor, June
15.
June 28 -- Giuliani's
blatant forum-shopping. Time was when lawyers showed
a guilty conscience about the practice of "shopping" for favorable judges,
and were quick to deny that they'd attempted any such thing, lest people
think their client's case so weak that other judges might have thrown it
out of court. Now they openly boast about it, as in the case of New
York City's recently announced plans to sue gun
makers. The new legal action, reports Paul Barrett of the news-side
Wall
Street Journal, could "prove especially threatening to the industry
because Mr. Hess (Michael Hess, NYC Corporation Counsel) said the city
would file it in federal court in Brooklyn. The goal in doing so
would be to steer the suit to the courtroom of U.S. District Judge Jack
Weinstein, who is known for allowing creative liability theories. ... Mr.
Hess said that New York will ask Judge Weinstein to preside over its suit
because it is 'related' to the earlier gun-liability case [Hamilton
v. Accu-Tek, now on appeal.]" (See also Nov.
1). ("New York City Intends to File Lawsuit Against Approximately 25
Gun Makers", June
20 (fee)).
June 28 -- From
our mail sack: transactional-lawyer whimsy. New
York attorney John Brewer writes: "This may just be a bit of transactional
lawyer inside humor, or it may be evidence that the agnostic and individualistic
themes in our culture have finally penetrated lawyers' contract boilerplate
(which for a variety of reasons tends to be an extraordinarily conservative-to-anachronistic
form of stylized discourse). According to the April 2000 issue of
Corporate
Control Alert [not online to our knowledge], a provision in the documentation
for the 1998 acquisition of International Management Services Inc. by Celestica
Inc. contained a definition which read in part as follows:
"Material Adverse Change" or "Material Adverse
Effect" means, when used in connection with the Company or Parent, as the
case may be, any change or effect, as the case may be, caused by an act
of God (or other supernatural body mutually acceptable to the parties)
...
"In a sign that some of the old certitude remains, however," John adds,
"the accompanying article referred colloquially to the clause containing
this language as a "hell-or-high-water" provision without any suggestion
of mutually acceptable alternative places of everlasting torment."
June 27-- Welcome
New
Republic readers. Senior writer Jodie Allen
of U.S. News & World Report tells us we're her favorite website,
which we consider proof we're on the right track. Writing the New
Republic's "TRB from Washington" column this week, her theme is our
legal system's willingness to entertain all sorts of remarkable new rights-assertions
that might have left Thomas Jefferson scratching his head, and she says
readers who want more "can monitor such cases at
Overlawyered.com."
We'll help with the following thumbnail link-guide to cases mentioned in
the column: drunken airline passenger,
child
left in hot van, right to non-sticky
candy, bank robber and tear gas device,
beer drinker's restroom suit & Disneyland characters glimpsed out of
uniform, haunted house too scary,
high-voltage tower climber (& second
case), killer whale skinny dip,
obligation to host rattlesnakes, parrot-dunking,
Ohio boys' baseball team, school
administrator's felony, stripper's rights,
and murderer's suit against her psychiatrists.
("Rights and Wrongs", July
3). (DURABLE LINK)
June 27 -- Reprimand
"very serious" for teacher. Norwalk, Ct.: "After
an in-house investigation that lasted more than a month, Carleton Bauer,
the Ponus Ridge Middle School teacher who gave an 11-year-old girl money
to purchase marijuana, has been reprimanded with a letter in his file."
The girl's father, who was not notified of the disciplinary action taken
against the teacher but was contacted by the press, felt the teacher's
union had been allowed to negotiate too lenient a treatment for Bauer,
a 31-year teaching veteran, but Interim Superintendent
of Schools William Papallo called the penalty "fair and equitable",
saying, "For someone who has worked so long, a reprimand is very serious".
(Ashley Varese, "Ponus teacher 'lacked judgment'", Norwalk Hour,
June 16, not online).
June 27 -- Peter
McWilliams, R.I.P. Although (see above item) there are
times when our authorities can be lenient toward marijuana-related infractions,
it's more usual for them to maintain a posture of extreme severity, as
in the case of well-known author, AIDS and cancer patient, and medical
marijuana activist Peter McWilliams, whose nightmarish ordeal by prosecution
ended last week with his death at age 50. (William F. Buckley Jr.,
Sacramento Bee, June
21; Jacob Sullum, Reason Online/Creators Syndicate, June
21; John Stossel/ABC News 20/20, "Hearing All the Facts", June 9; J.D.
Tuccille, Free-Market.Net Spotlight;
Media
Awareness Project).
June 27 -- AOL
"pop-up" class action. In Florida, Miami-Dade County Judge
Fredricka Smith has granted class action
status to a suit against America Online,
purportedly on behalf of all hourly subscribers who viewed the service's
"pop-up" ads on paid time. Miami attorney Andrew Tramont argues that
it's wrong for subscribers to be hit with the ads since they're paying
by the minute for access to the service (at least if they're past their
allotment of free monthly time), and "time adds up" as they look at them
-- this, even though most users soon learn it takes only a second to click
off an ad ("No thanks") and even though the system has for some time let
users set preferences to reduce or eliminate pop-ups. The case seeks
millions in refunds for the time customers have spent perusing the ads.
According to attorney Tramont, "the practice amounts to charging twice
for the same product. 'AOL gets money from advertisers, then money
from subscribers, so they're making double on the same time,' he said."
Please don't anyone call to his attention the phenomenon of "magazines",
or we'll never get him out of court. ("Florida judge approves class-action
lawsuit against America Online", CNN, June
25).
June 26 -- Cash
for trash, and worse? We're glad we didn't play a prominent
role in defending Microsoft
in its antitrust dispute, since we'd have found it very intrusive and inconvenient
to have our garbage rifled by private investigators and our laptops stolen,
as has happened lately to a number of organizations that have allied themselves
with the software giant in the controversy (Declan McCullagh, "MS Espionage:
Cash for Trash", Wired News, June
15; Ted Bridis, "Microsoft-Tied Groups Report Weird Incidents", Wall
Street Journal, June
19 (fee); Glenn Simpson, "IGI Comes Under Scrutiny in Attempt To Purchase
Lobbying Group's Trash", Wall Street Journal, June
19) (fee); Ted Bridis and Glenn Simpson, "Detective Agency Obtained
Documents On Microsoft at Two Additional Groups", Wall Street Journal,
June
23 (fee)). Material surreptitiously obtained from the National
Taxpayers Union, Citizens for a Sound
Economy, and Independent Institute
soon surfaced in unflattering journalistic reportage on these groups in
the New York Times, Washington Post and Wall Street Journal,
and two attempts were also made to get night cleaning crews to sell the
trash of the pro-Microsoft Association
for Competitive Technology. They're calling it "Gatesgate".
In other news, the New York Observer checks into what would happen
if the giant company tried to flee to Canada
to avoid the Justice Department's clutches (answer: probably wouldn't make
any difference, they'd get nailed anyway) (Jonathan Goldberg, "The Vancouver
Solution", June
12). And over at the Brookings Institution, it's a virtual civil
war with fellow Robert Crandall arguing against a breakup and fellow Robert
Litan in favor (Robert Crandall, "If It Ain't Broke, Don't Break It Up",
Wall
Street Journal, June
14; Robert Litan, "The rewards of ending a monopoly", Financial
Times, Nov.
24; Robert Litan, "What light through yonder Windows breaks?", The
Globe and Mail (Toronto), June
11, all reprinted at Brookings site).
June 26 -- "Was
Justice Denied?". Dale Helmig was convicted of the murder
of his mother Norma in Linn, Mo. This TNT
special June 20 impressed the Wall Street Journal's Dorothy
Rabinowitz as making a powerful case for the unfairness of his conviction
("TV: Crime and Punishment", June
19 (fee); TNT press release April
13). At the TNT site, links
will lead you to more resources on errors of the criminal-justice system
both real and alleged, including "Convicted
by Juries, Exonerated by Science" (DNA exonerations); "The
Innocent Imprisoned"; Justice:
Denied, The Magazine for the Wrongly Convicted; CrimeLynx
(criminal defense attorneys' resource); and Jeralyn Merritt, "Could
This Happen To Your Spouse or Child?" (Lawyers.com).
June 26 -- Updates.
Catching up on further developments in several stories previously covered
in this space:
* In the continuing saga of leftist filmmaker Michael Moore (see Sept.
16), who made his name stalking the head of General Motors with a camera
at social and business events ("Roger and Me") and then called the cops
when one of his own fired employees had the idea of doing the same thing
to him, John Tierney of the New York Times has added many new details
to what we knew before ("When Tables Turn, Knives Come Out", June
17) (reg).
* Trial lawyers are perfectly livid about that New England
Journal of Medicine study (see April
24) finding that car crash claimants experience less pain
and disability under a no-fault system that resolves their claims relatively
quickly. Now they're throwing everything they can find at the study,
lining up disgruntled former employees to question the researchers' motives,
saying the whole thing was tainted by its sponsorship by the Government
of Saskatchewan (which runs a provincial auto insurance scheme), and so
forth. (Association
of Trial Lawyers of America page; Bob Van Voris, "No Gain, No Pain?
Study Is Hot Topic", National Law Journal, May 22).
* A Texas judge has entered a final judgment, setting the stage
for appeal, against the lawyers he found had engaged in "knowingly and
intentionally fraudulent" conduct in a product liability case against DaimlerChrysler
where both physical evidence and witness testimony had been tampered with
(see May 23). "Disbarment is a
possible consequence, as are criminal charges, but none has yet been filed."
(Adolfo Pesquera, "Judge orders lawyers to pay $865,489", San Antonio Express-News,
Jun.
23). Update: see Mar. 17, 2003.
* It figures: no sooner had we praised the U.S. House of Representatives
for cutting off funds for the federal tobacco
suit (see Jun. 21) than it reversed itself and
voted 215-183 to restore the funds (Alan Fram, "House OKs Funds for Tobacco
Lawsuit", AP/Yahoo, Jun. 23).
June 22-25 -- Antitrust
triumph. With great fanfare, the Federal Trade Commission
announced this spring that it had broken up anticompetitive practices in
the recording industry that were costing CD buyers from $2 to $5 a disc,
saving consumers at least hundreds of millions of dollars. "So, how
far have CD retail prices fallen since? Not a penny ... Now, retail
and music executives are accusing FTC Chairman Robert Pitofsky of misleading
consumers and feeding the media 'artificially inflated' pricing statistics,
possibly to camouflage the lusterless findings of the FTC's costly two-year
investigation of CD advertising policies." A commission spokesman
says it can't release the basis of its pricing study because it's based
on proprietary information. (Chuck Philips, "FTC Assailed on Failed
CD Price Pledge", Los Angeles Times, June 2).
June 22-25 -- More
trouble for "Brockovich" lawyers. Latest trouble for real-life
L.A. law firm headed by Ed Masry, dramatized in the Julia Roberts hit film
"Erin Brockovich": a wrongful
termination suit filed by former employee Kissandra Cohen, who at 21 years
of age is the state's youngest practicing lawyer. Cohen alleges that
when she worked for Masry he "made repeated sexual advances, and when she
did not respond, he fired her. Cohen, who is Jewish, also claims
that Masry and other attorneys in his office made inappropriate comments
about her Star of David necklace and attire" and kept copies of Playboy
in the office lobby. Also recently, Brockovich's ex-husband, ex-boyfriend
and their attorney were arrested in a scheme in which they allegedly threatened
that unless Masry and Brockovich saw that they were paid off they'd go
to the press with scandalous allegations about the two (the sort of thing
called "extortion" when it doesn't take place in the context of a lawsuit).
("Sex Scandal for Brockovich Lawyer", Mr. Showbiz, April 28).
June 22-25 -- Compare
and contrast: puppy's life and human's. Thanks to reader
Daniel Lo for calling to our attention this pair of headlines, both on
articles by Jaxon Van Derbeken in the San Francisco Chronicle: "S.F.
Dog Killer Avoids Three-Strikes Sentence", June
2 (Joey Trimm faced possible 25 years to life under "three strikes"
law for fatal beating of puppy,
but prosecutors relented and he was sentenced to only five years); "Man
Gets Five Years In Killing of Gay in S.F.", April
25 ("high-profile" homicide charges against Edgard Mora, whom prosecutors
had "long labeled a hate-filled murderer", resolved with five-year sentence
for involuntary manslaughter.)
June 21 -- And
don't say "I'm sorry". "Be careful," said the night nurse.
"They're suing the hospital." First-person account of how it changes
the atmosphere on the floor when the family of a patient still under care
decides to go the litigation route. Highly recommended (Lisa Ochs,
"In the shadow of a glass mountain", Salon, June
19).
June 21 -- Good
news out of Washington.... The House voted Monday to curb
the use of funds by agencies other than Justice to pursue the federal
tobacco lawsuit. The Clinton Administration claims the result
would be to kill the suit (let's hope so), but it and other litigation
advocates will be working to restore the money at later stages of the appropriations
process, and the good guys won by a margin of only 207-197 (June 19: Reuters;
Richmond
Times-Dispatch/AP; Washington
Post)
(It soon reversed itself and restored the funds: see
June
26).
June 21 -- ...bad
news out of New York. Mayor Rudolph Giuliani has joined
the ranks of gun control advocates willing to employ the brute force of
litigation as an end run around democracy. "[F]ollowing the lead
of many of the nation's other large cities, [Giuliani] announced yesterday
that his administration would file its own lawsuit against handgun
manufacturers, seeking tens of millions of dollars to compensate New
York City for injuries and other damage caused by illegal gun use."
Maybe he wouldn't have made such a good Senator after all (Eric Lipton,
"Giuliani Joins the War on Handgun Manufacturers", New York Times,
June
20).
June 21 -- Stress
of listening to clients' problems. Dateline Sydney, Australia:
"A court awarded [U.S.] $15,600 in damages to a masseuse who suffered depression
after listening to clients talk about their problems. Carol Vanderpoel,
52, sued the Blue Mountains Women's Health Center, at Katoomba, west of
Sydney, claiming she was forced to deal with emotionally disturbed clients
without training as a counselor or debriefing to cope with resultant stress."
("Singing the Blues: Masseuse wins damages for listening to problems",
AP/Fox News, June 20; Anthony Peterson, "$26,000 the price of earbashing",
Adelaide Advertiser, June 20).
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