March 15 -- Annals
of zero tolerance: scissors, teacher's beer. A twelve-year-old
at Morton Middle School in Omaha has been expelled after she brought a
pair of blunt-edged safety scissors
to school earlier this month.
(Tanya Eiserer, "7th-Grader With Scissors Violates Policy", Omaha World-Herald,
March 9, link now dead). And ordering and drinking a beer with dinner
in the presence of her swim team has apparently brought an end to the teaching
and coaching career of Lori Gallagher in Greenwood, Ind. Gallagher
had taken her team to Noble Roman's restaurant after a February swim meet.
"Clearly, a situation in which alcohol is in the presence of minors is
inappropriate," said Dan Clark, deputy executive director of the Indiana
State Teachers Association, which backed Gallagher's removal.
(Dana Knight, "Greenwood coach suspended for drinking", Indianapolis Star,
March 9, link now dead; Jeff Taylor, Reason Express, March
13 (second item)).
March 15 -- Game
over four decades ago: let's change the rules. The latest
"Angelos bill" moving through the Maryland legislature would retroactively
change state law to make it easier for governments and individuals to sue
makers of interior lead paint, which was pulled off the market in the 1950s.
The bill would remove the requirement that plaintiffs actually identify
which firm manufactured paint to which they were exposed, instead allowing
suits against all manufacturers alike
under the theory of "market-share liability". The powerful attorney,
owner of the Baltimore Orioles, was earlier instrumental in steering legislation
through Annapolis retroactively tagging tobacco companies with liability
for selling their wares, a caper that resulted in a $1 billion fee claim
for his firm (see Dec. 9, Oct.
19 commentaries). Paint and pigment manufacturers brought in
former U.S. attorney general Benjamin Civiletti, former Solicitor General
Walter Dellinger and others to argue against the measure. (Michael
Dresser, "Lead Paint Bill is Debated", Baltimore Sun, March
10; Timothy B. Wheeler and William F. Zorzi Jr., "Lawmakers back bill
on lead paint", Baltimore Sun, January
28; industry
press release) (via Junk Science).
March 15 -- What
ADA was written for. Jose Francisco Almada took off for
Mexico on a Sunday in 1997 on learning that a niece there had died after
a long illness. When he returned on Wednesday he was told that his
employer, USA Waste Inc., had terminated him for skipping work without
notifying a supervisor. Almada hired a lawyer who proceeded
to sue the company under -- can you guess which statute? Not the
Family and Medical Leave Act, but the Americans
with Disabilities Act, on the grounds that the company's action was
a mere pretext to discriminate against him on the grounds of a back injury
which prevented him from doing heavy lifting in his sanitation rounds.
The company denied the charge and said Almada had displayed "poor work
attitude" aside from the absenteeism incident but the Colorado Civil Rights
Division sided with him and so did a jury, which voted him more than $250,000.
Almada's lawyer, James E. Gigax, said: "It is this kind of case the ADA
is written for." (Howard Pankratz, "Driver wins lawsuit under disabilities
act", Denver Post, Feb.
22).
March 15 -- A dream
of black goats. "To dream of white goats is a sign of
wealth and plenty," declares 
a
fortune-telling "Oraculum" regularly consulted by Napoleon Bonaparte; "but
black signify sickness and uncertain lawsuits." (Napoleon's
Book of Fate and Oraculum (Kessinger)) (via The New Yorker,
"Book Currents", Dec. 27-Jan. 3, not online) (send
black-goat greeting card).
March 14 -- Clinton
legal legacy. American Lawyer asked this site's
editor to contribute to a cover-story symposium on President Clinton's
legal legacy. "Bill and Hillary Clinton emerged from a Yale Law School
milieu that admired litigation as the remedy for practically every social
ill and assumed that the more people could be persuaded to assert their
rights in court, the better off society would be -- what some of us call
the invisible-fist theory. ... [By the end] the Clintons themselves [came]
to experience the intense miseries of destructive litigation -- an ordeal
through which they set a very poor example of how to behave, and from which
they appear to have learned precisely nothing." Along the way, the
piece sounds off on everything from the federal tobacco suit to sexual
harassment law. (Walter Olson, "Selective Liability", American
Lawyer, March
3).
March 14 -- Swissair
crash aftermath. Since its Flight 111 went down off Nova
Scotia in September 1998, Swissair has been widely praised for going farther
than any previous airline to help victims'
families: it offered them advance payments of about $154,000 without awaiting
the results of litigation, reimbursed extensive travel and funeral expenses,
and performed many other services for the bereaved. The efforts have
generated much good will among the families, but "is all this likely to
reduce Swissair's liability or the number of lawsuits filed against it?
Probably not," reports Margaret Jacobs of the Wall Street Journal's
news side. Faced with the reality that the American litigation system
behaves in just as harsh a fashion toward defendants who try to be good
guys as toward those who resist trench by trench, airlines in the future
may find themselves financially tempted to emulate the much harder line
taken by such as Korean Air Lines, which is still litigating against survivor
families 17 years after a crash.
A sidelight on the affair: recognizing that "courts outside the U.S.
typically award a third or less of what U.S. courts do in wrongful-death
actions", Swissair initially offered much lower amounts to European than
to American families, which raised a ruckus over there: "Swiss papers asked
whether the airline believed an American life had more value than a European
one." Inevitably, the airline wound up offering the higher sums to
everyone. Talk about genuine (for once) American imperialism: our
legal system is so successful at exporting its premises that European legal
systems can hardly give effect to their considered view as to the suitable
level of damages even in many disputes among European citizens. (Margaret
A. Jacobs, "Swissair Crash Tests Relations With Insurers", Wall Street
Journal, Feb. 15, fee-based archive).
March 14 -- How
bad can a capital trial get? What happens when a candidate
for the Bad Prosecutors Hall of Fame faces off against a contender for
the Clueless Defense Attorneys Championship? You get something like
the 1983 Texas trial that sent Calvin Jerold Burdine to Death Row, which
a federal judge threw out last September in favor of a new trial.
"It is true that there is no bright line that distinguishes consciousness
from sleep," wrote U.S. District Judge David Hittner, with reference to
allegations that Burdine's court-appointed defense lawyer had repeatedly
snoozed off during the proceedings. "However, the record and the evidence
here is clear: [the defense lawyer] was actually unconscious." According
to the Washington Post's Paul Duggan, such cases are frequent enough
that Texas appellate lawyers simply call 'em "sleeping-lawyer cases".
Because Judge Hittner found the inadequacy of defense sufficient grounds
to overturn the conviction, he did not need to address further allegations
that prosecutors had tainted the atmosphere against Burdine, who is gay,
by calling him a "fairy" and a "queer" during his trial on charges of fatally
stabbing a man during a burglary. According to the Post, "the
prosecutor, in seeking a death sentence, argued to the jury that imposing
a life term on a gay man would be an inadequate penalty, considering the
prevalence of homosexual activity in prison. 'Sending a homosexual to the
penitentiary certainly isn't a very bad punishment for a homosexual, and
that's what he is asking you to do,' the prosecutor told the jury, according
to a transcript." ("Inadmissible: Zzzzz", Texas Lawyer, October
4; text of judge's
order, Southern District of Texas; Paul Duggan, "Verdict Overturned
Last Fall, Man Still on Death Row", Washington Post, March
2).
March 13 -- Videogame
maker agrees to furnish safety gloves. How our state attorneys
general keep busy: Nintendo
of America has agreed to offer padded, fingerless protective
gloves, up to four per household, to owners of a video game that's
been blamed for cuts, blisters and other hand injuries. "The 'Mario Party'
game on the Nintendo 64 home game system can cause hand injury because
players are encouraged to rapidly rotate a joy stick with a grooved tip,
[New York] Attorney General Eliot Spitzer said Wednesday." Spitzer's
office said the company had set aside up to $80 million to provide gloves
-- actual outlays can be predicted to be far below that -- "and agreed
to also provide $75,000 for the cost of the attorney general's investigation,"
reports AP. (Spitzer press release, March
8; "Nintendo To Give Safety Gloves", AP/AltaVista, March
8; David Becker, "Nintendo offers glove to prevent joystick injuries",
CNet News.com, March
9). Reader Kenton Hoover, one of our informants on this story,
is reminded of the old dialogue: Patient: "Doctor, it hurts when
I do this." Doctor: "So don't do that."
March 13 -- Majesty
of the law. "Attorney Marvin Barish could be hit with
harsh sanctions by a federal judge
for threatening to kill an Amtrak defense lawyer and calling him a 'fat
pig' during a trial recess," Shannon Duffy reports in Philadelphia's Legal
Intelligencer. U.S. District Judge Herbert J. Hutton declared
a mistrial upon learning that Barish had allegedly told defense attorney
Paul F.X. Gallagher, fist cocked, "I will kill you with my bare hands."
"You threatened his life in the presence of witnesses, sir," said the indignant
judge, after hearing an account of the incident from his courtroom deputy.
"Not in the presence of the jury," Barish replied; then, perhaps as it
dawned that this was not an entirely satisfactory response, he added a
more general denial: "I didn't threaten his life or anybody." At
a later sanctions hearing, Barish said that he was "not condoning my conduct.
It was really bad" but that "I didn't mean that I would kill him" and that
Gallagher "wasn't in obvious fear of his life". Barish's attorney,
James E. Beasley, said that
his client was the real victim in the situation, having been provoked by
unfair legal tactics on the part of Amtrak: "I think that having Mr. Barish
go through this has been a sufficient sanction in and of itself."
(Shannon Duffy, "An Angry Lawyer?", The Legal Intelligencer, March
10).
The colorful Barish last figured in these columns December
14, when we reported on the controversy over his having set up a plaintiff
client in an apartment and paid his rent, gas, electric, cable television
and phone bills. Updating that case, a federal judge refused
to disqualify the veteran Philadelphia attorney as counsel in the case,
finding such a sanction too harsh even if he committed an ethical violation.
(Shannon Duffy, "Sugar Lawyer", The Legal Intelligencer, Nov.
22).
March 13 -- Take
the settlement, sue anyway. The Equal Employment Opportunity
Commission is considering a regulation under which terminated
workers who've accepted a severance packet in exchange for a waiver
agreeing not to sue could keep the packet and sue anyway. The worker
would be allowed to attack the waiver of rights as not knowing and voluntary
without having to "tender back" the sums received. "This is take
the money and run," says Mark DiBernardo of the management-oriented law
firm Littler Mendelson. Steven Allen Bennett, commenting on behalf
of the American Corporate Counsel Association, isn't happy about the proposed
rule either, saying it encourages "disgruntled employees with spurious
claims to fight on endlessly". (Kevin Livingston, "Gilding the Golden
Handshake", The Recorder/ CalLaw.com, Jan.
24).
March 13 -- Welcome
WhatTheHeck.com, Center for Equal Opportunity, RTL-4 Dutch television
visitors:
* WhatTheHeck.com
says its mission is "exposing the funny underside of society and, of course,
stupid government tricks". Check out its list
of joke Ebay auctions, entitled "Ain't Capitalism Grand?", and its
link to Frederic Bastiat's Petition
of the Candle-Makers of Paris, the funniest-ever satire on trade protection,
on an Australian server. We get listed under the heading "Smart Sites";
* "If you haven't visited <www.overlawyered.com>, you should,"
advises the Legal & Regulatory News newsletter (January) of
the Center for Equal Opportunity,
"the only think tank devoted exclusively to the promotion of colorblind
equal opportunity and racial harmony", headed by Linda Chavez;
* And Max Westerman's recent report for RTL-4 Dutch television
on lawsuits in New York City
draws on this site's resources.
March 10-12 --
Accused of harassment; wins $2 million from employer.
A Circuit Court jury in Hawaii has voted a $2.1 million award to Leland
Gonsalves, who was fired from an auto service manager job at Infiniti-Nissan
after a female service clerk filed a sexual
harassment complaint against him. "It felt like I was being dragged
through the mud and no matter how hard you rinsed off, it was going to
follow you for the rest of your life," Gonsalves said. "The jury
found that Infiniti-Nissan unlawfully discriminated against Gonsalves,
breached a promise to him that his job would not be affected by the investigation,
and violated its own personnel policies and procedures involving his termination."
In court documents, the company had contended that "it conducted a preliminary
investigation into the clerk's allegations and found that Gonsalves appeared
to have sexually harassed her based on his admissions".
Eric Miyasaki, president of Nissan Motor Corp. in Hawaii Ltd., said
the company had scrupulously followed EEOC guidelines for investigating
harassment claims but that the court had found those guidelines to be non-binding.
Miyasaki "said the verdict has 'dangerous' implications for every employer
in the state. 'If this decision is allowed to stand, Hawaii employers receiving
complaints of harassment will have to choose whether they want to risk
liability for ignoring the complaint or risk liability for doing what the
sexual harassment law says they must do.'" Gonsalves, according to
his lawyer, "has admitted to some of the woman's allegations, apologized
to her for any actions that she may have considered offensive and denied
some allegations. But [he] has maintained that his conduct did not reach
a level where it created a hostile work environment". (Debra Barayuga,
"$2.1 million award in reverse prejudice jury verdict", Honolulu Star-Bulletin,
Jan. 26).
[Update Jun. 2, 2003: Supreme Court
of Hawaii in Nov. 2002 reversed verdict. Also corrected plaintiff's
first name.]
March 10-12 --
Do as we say, cont'd. A big employer that delayed sending
out overdue paychecks for weeks or even months would get in trouble with
the law, right? But in this case the poky payers are the D.C. Superior
Court and D.C. Court of Appeals in Washington, which have had a reputation
for years for neglecting their bills. Eventually they got sued (in
federal court) by three lawyers and one private investigator who hadn't
been paid for court-appointed criminal defense work. Then things
got worse: "Because its attorneys did not reply within 20 days of Dec.
16 -- the date the suit was filed -- a clerk entered a default against
the D.C. courts," reports Legal Times. The failure to respond "certainly
sets an interesting precedent in the courts' effort to instill public confidence
in its operations," observes attorney Gary Sidell. (Carrie Johnson,
"D.C. Courts Default in Suit by Lawyers", Legal Times, Jan.
14).
March 10-12 --
Rise, fall and rise of class actions. "The frequency of
class actions has ebbed and flowed in
the past 30 years. In 1988, The New York Times reported a sharp
drop-off in these cases since the 1970s. A legal expert told the
newspaper that class actions 'sort of had their day in the sun and kind
of petered out.'
"The sun is shining again. Though no government agency keeps accurate
statistics on the numbers of class actions, no one -- trial lawyers or
corporate America -- disputes that the frequency of these cases has multiplied
exponentially [well, at least geometrically -- ed.] since the early
1990s.
"A survey of large corporations by the Federalist Society, a conservative
research group in Washington, D.C., estimated that from 1988 to 1998, class
actions filings increased by 338 percent in federal courts and by more
than 1,000 percent in state courts. Corporations that were defending only
a handful of these cases 10 years ago now report dealing with 50 or 80
at a time." (Eddie Curran, "On behalf of all others: legal growth industry
has made plaintiffs of us all", Mobile Register, Dec.
26) (see Feb. 7).
March 9 -- Record
employment verdict thrown out. A unanimous California
Supreme Court, reversing an appeals court, has upheld a trial judge's overturning
of a record-breaking $89.5 million discrimination
verdict against Hughes Aircraft Co. The trial judge had "found
that (1) passion and prejudice had motivated the jury, (2) the damages
did not bear a reasonable relationship to Hughes’s actions or plaintiffs’
injuries, and (3) they were grossly disproportionate to the amount of actual
damages." Justice Janice Brown wrote the high court's opinion and
also added a concurring opinion, also signed by Justice Ming W. Chin, calling
unlimited punitive damages a violation of fairness and due process ("fundamental
notions of justice require some correlation between punishment and harm"
-- with cite to Aristotle's Nicomachean Ethics) and saying such
damages should seldom exceed triple the amount of actual damages.
A counter-concurrence by Justice Stanley Mosk dismissed the awarding of
excessive punitive damages as a non-crisis and the 3x-damages yardstick
as itself arbitrary.
Since Los Angeles County Superior Court Judge Malcolm H. Mackey threw
out the verdict, attorneys for the plaintiffs have waged a personal campaign
against him in the press: Judge Mackey appears to think "that only white
people can be trusted to sit dispassionately on matters of race," charges
Santa Monica lawyer Ian Herzog, who represents former Hughes employees
Jeffrey Lane and David Villalpando. "They were trying to send a message
to the judiciary that any judge who overturns a civil rights verdict ...
is going to be accused of being racist," said Hughes attorney Paul Grossman,
of Paul, Hastings, Janofsky & Walker. "The tactics were outrageous."
(Maura Dolan, "Justices Order New Trial in Race Bias Suit", Los Angeles
Times, March 7, link now dead; Lane
v. Hughes Aircraft text of decision, filed March 6 (PDF format)).
March 9 -- Costly
state of higher awareness. "Deepak Chopra, the high lama of
litigation, may be a pussycat on TV, but cross him in the courtroom and
you'll have a tiger on your tail," reports Stephen Lemons at Salon.
The New Age guru has "garnered notoriety through his frequent visits to
the courtroom", of which the most famous was his $35 million defamation
suit against the Weekly Standard, settled on terms that included
an abject retraction plus what Chopra says was a $1.6 million settlement.
The La Jolla-based author and alternative medicine advocate has described
that suit as "an act of love" meant to lift the magazine to "a higher state
of awareness." (Stephen Lemons, "The art of the spiritiual smackdown",
Salon, March
7).
March 9 -- Everyone
should weblog. Via Eatonweb
yesterday, we discovered more 'blogs to keep an eye on: Law
School Dropout, by Chris O'Connor out of Oregon, led us to several
previously unfamiliar resources, including a site on famous
American trials by Prof. Doug Linder of the U. of Mo.-K.C. School of
Law, Prof. Peter Tiersma's list of links
on law and language, and a compilation of "Weird
and Funny Cases" with appended case citations, a welcome service.
News/discussion log Edgecaseis
worth a look as well. Weblogging (of which this site is one example)
"appears to be undergoing a huge surge in popularity," reports Wired
News (Leander Kahney, "The Web the Way It Was", Feb.
23). And Editor & Publisher Online columnist Steve
Outing says it's time mainstream news organizations "started doing Weblogs
of their own". ("Weblogs: from Underground to Mainstream", March
8).
March 8 -- Barrel
pointing backward, cont'd. Another item, overlooked earlier,
to add to the file on how litigation is slowing development of "smart guns"
(see Feb. 17 commentary): a company
that's pioneered attempts to develop such guns is now seeking to pull out
of the firearms business. Switzerland's SIG Industrial Co. Holding
Ltd. said it was seeking to sell its firearms businesses in Europe and
the U.S., the latter of which claims an 11 percent share of the U.S. commercial
pistol market. "The SIG announcement ... is notable because the company
attracted attention [in December], when it said that it would be the first
manufacturer to market 'personalized' handguns. These weapons include
an electronic locking system designed to allow only authorized users to
fire," reports Paul Barrett of the Wall Street Journal's news side.
Such locking systems, of course, are among the innovations demanded by
the cities suing gunmakers. "SIG
said it will go ahead with 'limited shipments' of its personalized pistols
later this year."
From the same report: "In a separate development, gun manufacturer H&R
1871 Inc. said it would cease to produce handguns because of the litigation-driven
increases in the cost of liability insurance and shipping. H&R,
Gardner, Mass., had made a relatively small number of handguns and is primarily
known for shotguns and rifles." And the Zilkha group, which owns
Colt's, is trying to complete an acquisition of German-owned Heckler &
Koch, after which it would "reduce or phase out Heckler & Koch's sales
of civilian pistols in the U.S." (Paul Barrett, "Swiss Gun Maker
SIG Plans to Sell U.S. Unit", Wall Street Journal, Jan. 19, fee-based
online service).
March 8 -- Californians
reject law boosting insurance litigation. By about a two-to-one
margin, Golden State voters turned thumbs down on Proposition 30 (see
March 6 commentary), thus disappointing the
state's trial lawyers and a coalition
whose efforts they had backed. With 59 percent of precincts reporting,
the measure was trailing 33 to 67 percent. (L.A. Times, proposition
results).
March 8 -- "Girl
puts head under guillotine; sues when hurt". The mock
guillotine, installed as part of a school gymnasium haunted-house,
had a wooden blade and was considered safe but allegedly injured her when
its rope snapped. (Paul Waldie, "Girl sues after having 'guillotine'
hit her neck", National Post, March 6, link now dead; via Obscure
Store). It's our second item within a week from a Nova Scotia
junior high school (see "Hug protest in Halifax", March
2).
March 8 -- Audio
clip: our editor on NPR "Morning Edition". Lawyers filed
suit this week against the company that owns the K-B Toys chain, seeking
class action status on behalf of African-American customers. The
suit charges that stores in the chain located in white neighborhoods around
the Washington, D.C. area have a more liberal check acceptance policy than
stores with a predominantly minority clientele, a disparity that they say
violates the Civil Rights Act. NPR's Kathleen Schalch interviews
this site's editor who points out that courts have been reluctant to find
store-to-store disparities unlawful when owners can cite a cost basis for
them, such as a higher risk of returned checks in some locations. (March
6, summary
(sixth item); audio
clip (6:09 -- requires Real Audio)).
March 7 -- Mass
ADA complaints. The problem of ADA filing mills -- law
offices that work closely with nonprofits or individual complainants to
file large volumes of complaints under the Americans
with Disabilities Act, which are then settled for legal fees and a
promise of alterations -- has begun breaking out into the general press
(see our Jan. 26-27, Feb.
15 commentaries). John Stossel last Friday devoted his ABC
20/20 "Give Me a Break!" to the topic, relating the tale of shop
owners Dave and Donna Batelaan in Lake Worth, Fla., whose Action Mobility
Products got tagged with an ADA complaint for not having a sign designating
handicap parking, an amenity that seemed unnecessary since the store sells
products aimed at disabled buyers and nearly all of its customers are disabled.
The Batelaans, who are disabled themselves, wound up paying $1,000 to settle
the lawsuit, which was filed without warning. (Frank Mastropolo and James
Wang (writers), "Taking
Advantage", ABC 20/20, "Give Me a Break!" with John Stossel,
March 3, transcript).
Also last Friday, USA Today drew attention to the problem and,
for balance, ran a guest op-ed by Florida attorney Robert Anthony Bogdan,
who files such complaints ("...the motivation of myself and Lance Wogalter,
as attorneys for our clients, is not to rake in huge fees, as critics claim.
We have undertaken this representation because our client's position is
the right position. Of course, we cannot work for free.") And Forbes'
Michael Freedman contributes further details about Bogdan's representation
of the disabled daughter mentioned in our Feb.
15 report: she's only 12 years old, which makes it especially incongruous
that she's filed complaints against a liquor store and pawn shop for alleged
lack of accessibility. ("Loophole lets lawyers sue over dubious problems",
and Robert Anthony Bogdan, "Suits force ADA compliance", USA Today,
both March 3, no longer online; Michael Freedman, "How lawyers keep busy",
Forbes, March
20).
March 7 -- Medical
mistakes, continued. Further weaknesses of that much-publicized
"epidemic of malpractice" study,
per an article by New York Times health writer Lawrence K. Altman,
M.D.: the "medication errors", prominent among the total, aren't necessarily
the clear-cut kind where a different compound or dosage is taken than the
doctor intended; many instead shade imperceptibly into judgment calls as
to whether the physician was right to balance hoped-for benefits against
known risks of side effects in particular cases. And: "Classifying
falls as errors, as the report did, is also a murky area because they happen
commonly in homes and on the street." Though caregiver negligence
concededly contributes to some falls, others are unavoidable in a largely
elderly patient population amid unfamiliar surroundings and disoriented
by illness and by powerful medications. ("The Doctor's World: Getting
to the Core of Mistakes in Medicine", New York Times, Feb.
29) (earlier coverage of the study on this site: Feb.
22, Feb. 28).
March 7 -- The
scarlet %+#?*^)&!. More firms are severing relations
with customers who are heard to make profane, raunchy or racially insensitive
remarks, a step that helps insulate them from possible liability for tolerating
a "hostile environment" for their own
workers. "Plante & Moran, a Southfield, Mich., accounting and
consulting firm, has terminated two or three clients in the past five years
for abusive or profane language, sexist jokes or other offenses, says managing
partner Bill Matthews." (Sue Shellenbarger, "More Firms, Siding With Employees,
Bid Bad Clients Farewell", Wall Street Journal, Feb. 16 (requires
online subscription)). And Forbes reports that some
employers are hiring $1,000-an-hour consultant James O'Connor to mount
seminars for employees on how to avoid using foul language; O'Connor's
consultancy is called the Cuss Control Academy. (Michael Freedman,
"The Curse of Consultants", Forbes, Jan.
24).
March 6 -- Zapped
pylon-climber sues liquor servers, utility. Nominated
by reader acclaim: Ed O'Rourke has sued Tampa Electric, along with six
bars and stores that sold him alcoholic beverages, over a 1996 incident
in which he was blasted by 13,000 volts of electricity after breaking
into a fenced, gated and locked utility substation and climbing up
a transformer in a "drunken stupor". The suit further alleges that
local bars and stores negligently served O'Rourke liquor even though he
was "unable to control his urge to drink alcoholic beverages". The
owner of the Waterhole Sports Bar, one of those sued, said he "remembers
the transformer incident but denied that O'Rourke drank at his bar the
night it happened. 'Because he was previously thrown out of here because
he was writing on the bathroom walls.'" ("'Shocked' Man Sues Bars
That Served Him", Reuters/Yahoo, March 3, link now dead) (another
pylon-climber case: see Sept. 17).
March 6 -- Press
releases, or "strike suit" ads? Tampa Tribune looks
in some detail at the puffish "news releases" by which securities class-action
lawyers announce new suit-filings: are they informing the press, or soliciting
more clients? "'These announcements are intended to say, "I'm here.
I'd like to be lead counsel,"' said Charles Elson, a law professor at the
Stetson University College of Law in Gulfport." Bar association officials
say that because these releases "don't technically qualify as advertising,
they aren't subject to scrutiny by these professional groups." (Eric
Miller, "The paper chase", Tampa Tribune, March 5, link now dead).
March 6 -- "Whirlpool
settles $581 million verdict out of court." The original
Alabama jury verdict last May involved a $1,200 dispute over a satellite
dish. Terms of the new settlement, with lawyers for Barbara Carlisle
and her parents, George and Velma Merriweather, weren't disclosed.
(AP/Fox News, March
1).
March 6 -- Pro-litigation
measures on Calif. ballot. Propositions 30 and 31, if
defeated by voters, would repeal two laws favored by trial lawyers that
make it easier to sue insurance companies for delaying the payment of claims,
including third-party liability claims against their policyholders.
The measures appear to be trailing in voter support. (Michael Kahn,
"Calif. battle over insurance lawsuits cost millions", Excite/Reuters,
March 2, link now dead; Benjamin Zycher, "Do We Really Need Even More Lawsuits?",
Los Angeles Times, March 3, link now dead; Andrew Tobias, "California
Props", online column, March
6) (measures defeated; see March 8 update).
March 3-5 -- It's
Howdy Doody litigation time. Although the freckle-faced
marionette of fifties TV was awarded a bronze star last month at Rockefeller
Center, the actual cowboy-puppet used on the show has been locked in a
trunk in a bank vault in New London, Ct. for the past year, the subject
of a prolonged ownership dispute between the late puppeteer Rufus Rose's
family and the Detroit Institute of Arts. The last cast member to play
the part of Clarabell the clown, Lew Anderson, 77, has even been put through
a deposition, but apparently did not jump up and squirt the lawyers with
seltzer as he might have in days of yore. (Corey Kilgannon, New York
Times/Deseret News, Feb.
27; NBC website on the
show)
March 3-5 -- Welcome
Reader's Digest visitors. Randy Fitzgerald's newly
posted article on the outrageous results of asset-forfeiture laws, "Guilty
Until Proven Innocent", gives this website a
link.
March 3-5 -- Junk
fax litigation, continued. Latest case of this sort to
attract notice is in Georgia, a class action
seeking $12 million from Hooters restaurants over alleged uninvited faxing
of lunch coupons. "Value-Fax, owned by Bambi K. Clark, was hired
by Hooters and other businesses to distribute advertisements to Augusta-area
fax machines" in the mid-1990s, according to Trisha Renaud in the Fulton
County Daily Report (Jan.
26). See our Oct. 22 commentary
for an account of the epic legal struggle over unsolicited faxing in Houston.
March 3-5 -- "Tenure
Gridlock: When Professors Choose Not To Retire". The New
York Times quotes Muhlenberg College president Arthur Taylor on
the "tenure gridlock" that's resulted from age
bias law's having deprived colleges of discretion over how long faculty
stay at their posts: "We have no way of asking someone to retire. They
literally can go on forever -- and some do." (Edward Wyatt, Feb.
16).
March 3-5 -- "ADA's
Good Intentions Have Unintended Consequences". Insight's
John Elvin explores headaches caused by the application of the Americans
with Disabilities Act in the workplace, including safety worries, the
law's protection of workers who suffer mental illness, and the "sued if
you do, sued if you don't" clash between various legal rules. Quotes
this site's editor at length (Jan.
28).
March 3-5 -- Medical
monitoring conference. Lawsuits over "medical monitoring"
contend that although a plaintiff may not have sustained any detectable
health injury from an event, the defendant should nonetheless pay for periodic
doctors' checkups to keep tabs on whether such injury emerges later.
In December the Federalist Society brought critics and supporters of the
idea together for a conference whose transcript
is now online; product liability
critic Victor Schwartz of Crowell and Moring, with three co-authors, has
also published a paper critical of the notion on the Social Science Research
Network. ("Medical
Monitoring - Should Tort Law Say Yes?", posted Feb. 22).
March 2 -- Hug
protest in Halifax. "Students at a Nova Scotia junior
high school went on strike yesterday, walking out of class to protest a
strict behavioral code they say forbids everything from hugs and high-fives
to piggybacks." Like a growing number of other schools
across Canada, Vanier Junior High "takes
a zero tolerance stance on all physical contact, fearful that horseplay
could spiral into something more serious." The results have included
prohibitions on tag, touch football and other contact games; mandatory
suspensions for playful antics such as pushing schoolmates in the snow;
and, in recent controversies at two Manitoba schools, bans on "mass hugging"
and kissing in hallways. "We want to be able to go to school and
be able to hug your friend good morning," says eighth grader Rosemary Buote
of the new Halifax protests, in which about 200 students chanted slogans
and "carried homemade signs that read: 'We want hugs not punches' and 'We
want a school not a prison'". (Peter McLaughlin, "Halifax students
walk out over hands-off policy", Halifax Daily News/National
Post, Feb. 29; Jennifer Prittie, "Schools are ruining childhood, critics
charge", National Post, Feb. 28, links now dead).
March 2 -- Because
they still had money. Class-action lawyers sued cigarette
companies last month on grounds of alleged price-fixing, but antitrust
experts interviewed by the Washington Post said the case for liability
was far from clear on the evidence laid out thus far. Michael Hausfeld,
of D.C.'s high-profile Cohen, Milstein, Hausfeld & Toll, is leading
the charge, as he also is in private actions against Microsoft.
The Wall Street Journal's news side reports that Hausfeld "says
he was eager to sue the industry, at least in part, because his firm missed
out on the fee bonanza that resulted from the state tobacco settlements."
When the earlier litigation binge was being organized some of Cohen, Milstein's
partners were skeptical about the states' likelihood of prevailing, with
the result that the firm "turned down invitations to help represent various
states." (James V. Grimaldi, "Doubts Raised on Tobacco Lawsuit",
Washington Post, Feb. 9, link now dead; Paul Barrett, "New Legal
Attack Aims at Tobacco Firms", Wall Street Journal, Feb. 8) (requires
online subscription).
March 2 -- Update:
unmitigated madness, on lawyers' orders. Andrew
Goldstein "has twice punched a court social worker since he stopped taking
his anti-psychotic medication, court officials and lawyers disclosed".
Goldstein's lawyers advised him to stop taking his medication in preparation
for his murder trial so the extent of his schizophrenia could properly
impress the jury (see February 26-27).
Xavier Amador, a professor at Columbia's medical school, conceded the defendant
might benefit legally from the tactic, but said it was deplorable from
a medical standpoint and might cause him permanent damage. In his
previous trial, which ended with a jury deadlock, defense lawyers argued
"that the subway attack [on Kendra Webdale] had been one in a series of
psychotic episodes over 10 years in which Mr. Goldstein abruptly punched,
kicked or shoved people." (David Rohde, "Court is Told Subway Killer,
Off Medication, Hit a Social Worker", New York Times, Feb. 29 (fee-based
archive)).
March 2 -- Yahoo
stalked me! A suit newly filed in Dallas charges Yahoo!
Inc. with various legal offenses that include violation of Texas's anti-stalking
law because its sites use cookies to track visitors' movements, which attorney
Lawrence Friedman called a "surveillance-like scheme". (Texas anti-stalking
law forbids the following of another person around repeatedly in a way
calculated to cause him to fear for his own safety or that of his family
or property.) Lawyers around the country are rushing to file privacy-invasion
suits against commercial websites,
a process the National Law Journal calls a "potential bonanza" for
the bar but also a "crapshoot": "They're really groping for theories and
statutes to use as a basis for the claims," says Fordham law professor
Joel Reidenberg. The lawsuits often charge site operators with violations
of antihacking statutes -- specifically, gaining "unauthorized access"
to computer systems and electronic communications. "This is only
the start of a lot of issues we're going to have with the Internet," says
one plaintiff's lawyer. (Matt Fleischer, "Click Here for More Web
Suits", National Law Journal, Feb.
22; "Lawsuit Reportedly Claims Yahoo's Web 'Cookies' Allow Illegal
Stalking", DowJones.com, Feb.
18; "Texas company accuses Yahoo of privacy violations", Bloomberg/CNet,
Jan.
26).
March 1 -- From
our mail sack: skin art disclaimers. Pat Fish of Tattoo
Santa Barbara wrote us over the holidays:
"All tattoo parlors use a waiver form now, hoping to intimidate the
clients from suing should they fail to take good care in healing their 
tattoo.
Part of the form goes on at length about understanding that this is a permanent
change to the appearance, that the client has no mental impairment or physical
disease. So I got a perverse impulse the other day and added to mine
the phrase 'I am not a lawyer, nor do I work for one.' Hey, I can
wear gloves to protect myself from someone who has a communicable disease,
but I figure it is LAWYERS I'm really scared of!
"So last week I got my first lawyer, and he did not initial the paragraph
in which that phrase appeared and explained that, in fact, he was a lawyer.
So I made him circle the phrase, and write in the margin next to it 'But
I am ashamed of it.' Then we proceeded to do the armband tattoo.
"I have a feeling that I am on my way to becoming an urban legend in
the law circles of Los Angeles, since I am sure that whenever he shows
off his new tattoo to colleagues he will tell this story." (Tattoo
Santa Barbara consent form) (more
on disclaimers).
March 1 -- Class-actioneers'
woes. Milberg Weiss Bershad Hynes & Lerach L.L.P.
is still the best-known plaintiff's class
action firm in the land, but it's suffered more than its share of reverses
of late. The National Law Journal reports that three of the
firm's partners have resigned so as to avoid paying a multimillion-dollar
share of its $50 million settlement with Lexecon Inc. over charges of malicious
litigation; the payout was not covered by insurance. In January,
allegations emerged that one of the firm's "lead plaintiff" investors in
a class-action suit against Oxford Health Plans Inc. had misrepresented
his education, criminal record, history as a defendant in a civil case
and his trading in Oxford securities. All this on top of the embarrassment
last fall (see Oct. 13) in which
Milberg Weiss inadvertently sued one of its own clients for treble damages
for alleged racketeering in the course of a legal offensive against makers
of children's Pokémon trading cards. (Karen Donovan, "Three Milberg
Partners Resign", National Law Journal, Jan.
11; "Another Fine Mess for Milberg", Jan.
25).
March 1 -- Prozac
made him rob banks. Connecticut Superior Court Judge Richard
Arnold last week found Christopher DeAngelo of Wallingford not guilty of
robbing banks and a department store because the drug Prozac made
him do it. "This is not a case of somebody pulling a fast one
or being too clever," said the twenty-eight-year-old's attorney, John Williams.
"The hard indisputable fact of this case is that this young man was driven
to commit crimes by a prescription drug." Courts in Kentucky, New
York and Minnesota have rejected legal claims based on Prozac use over
the last decade. ("Conn. judge: Man not guilty of robbing banks because
Prozac made him do it", AP/CourtTV, Feb.
25).
