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| ARCHIVE -- NOV. 2000 (II) |
November 20 --
Flow control. The Florida Supreme Court has a liberal
and activist reputation, which is why many Gore supporters see it as their
ace in the hole in the recount controversy
(John Fund, "On the Bench for Gore?", OpinionJournal.com (Wall Street
Journal), Nov. 15;
Robert Alt, "The Florida Supremes", National Review Online, Nov.
16). "To scrounge for every last vote, Gore has flooded Fort
Lauderdale with tough, seasoned Democrats, the sort who are used to keeping
wafflers in line and to count and recount votes until they know exactly
what it will take to outdo their opponents. Many of the hired hands speak
with a Boston brogue," reports the L.A. Times. A lawyer explains
the routine to volunteers: "'It's very, very important that if you see
any kind of mark -- a scratch, a dent, a pinprick in Al Gore's column --
that you challenge.' When someone then asked what they should do
if they found a Bush ballot with an indent, the lawyer said: 'Keep your
lips sealed.'" (Elizabeth Mehren and Jeffrey Gettleman, "Seasoned
Democratic Army Hits the Shores of Florida", Los Angeles Times,
Nov. 17). "[I]f you're just counting existing ballots, there shouldn't
be any chads on the counting-room floor. But, whether by accident or design,
the little fellers keep detaching themselves from the ballot, thereby creating
more and more new votes." (Mark Steyn, "Smooth man Gore starts to
play rough", Daily Telegraph (UK), Nov.
19; "Gore's law: When you're beaten to the punch, it's the chads that
count", Nov.
17). See also Charles Krauthammer, "Not By Hand", Washington
Post, Nov.
17; Jurist special
page on election 2000.
November 20 --
"Judge fines himself for missing court". "Hamilton
Municipal Court Judge Paul Stansel believes he has no more right to skip
court than the people who have to appear before him. Stansel found
himself in contempt of court and fined himself $50 -- half a month's salary
-- after missing the Sept. 27 monthly court session because he was tending
to his sick pony named Bubba and forgot it was court day, he said."
(Harry Franklin, Columbus Ledger-Enquirer, Nov.
7).
November 20 --
How to succeed in business? Earlier this fall it
was widely reported that Christian Curry received nothing from the settlement
of his race and sexual orientation suit against Morgan Stanley Dean Witter,
which had fired him after nude pictures
of him were published in a sexually explicit magazine. See, for example,
"Curry Drops Suit Against Morgan Stanley Dean Witter" (press release),
Yahoo/Business Wire, Sept. 15 (quoting Curry: "I will receive no payment");
Dan Ackman, "L'Affaire Curry Ends In Settlement", Forbes.com, Sept.
15 ("Curry got nothing, and said he was happy with that."). However,
the New York Post reported last month that Curry arrived at a press
conference in a new red Ferrari to announce that he had just paid $2 million
to buy a Harlem newspaper and "plans to start a modeling agency, a film
and TV production company and a hedge fund." According to the paper,
"sources" tell it that the investment firm paid Curry $20 million on condition
he keep quiet about the case. "The settlement was brokered in September,
right before Morgan Stanley CEO Philip Purcell was to give his deposition."
Curry declined at the press event to comment on the status of his lawsuit;
it is not clear how the earlier and more recent accounts can be reconciled
with each other. (Evelyn Nussenbaum, "Curry Buys Newspaper, Has Big
Plans", New York Post, Oct. 20). See update, Nov.
23, 2003.
November 17-19 --
Punch-outs, Florida style. Palm Beach tobacco law
magnate Robert Montgomery is a frequent subject of commentaries in this
space (see April 12, Aug.
8-9, 2000; Aug. 21, 1999; estimated
tobacco fee $678 million), and somehow
we knew he'd turn up as a player in the recount
mess. Sure enough he's acting as attorney for embattled county
elections director Theresa LePore (Kathryn Sinicrope and Michele Gelormine,
"Recount waiting game continues", Palm Beach Daily News, Nov. 16).
Montgomery, a major party donor, recently represented without charge the
incumbent Democratic court clerk in Palm Beach against a public records
lawsuit filed by Republican challenger Wanda Thayer; in that capacity he
gave Thayer reason to feel really sorry she ever filed the action, putting
her through a harsh deposition and menacing her with having to pay his
$350-$500 /hour fee if she lost. Someone who represents the clerk
of court free of charge against her opponent in a politically sensitive
case is likely to stay a pretty popular guy around the courthouse, no?
(Marc Caputo, "Attorneys carry clerk's campaign", Palm Beach Post,
Sept. 26).
In the Broward County recount Republicans have noticed no fewer than
78 of the loose bits of paper known as "chads" lying on the floor of the
recount facility and say the punchcard ballots are being over-handled in
chaotic fashion by ad hoc election workers, some of them unknown to the
official in charge. They've asked that the recount be halted until
more secure procedures can be instituted, but a judge turned them down
and a Democratic attorney ridicules their concerns (Sean Cavanagh, "Gore
gets 13 more votes so far in Broward recount", Fort Lauderdale Sun-Sentinel,
Nov. 16; Marian Dozier, "Chad 'fallout' grows the more ballots are handled",
Nov. 15). "Q. If lawyers for Democrats and Republicans beat
each other's brains out for a few months in Florida, won't that result
in fewer lawyers? Who can argue with that? A. Like night crawlers,
a complete new lawyer grows out of any piece of attorney sliced off in
court. Their regenerative powers are frightening." (Gary Dunford,
"Night crawlers", Canoe/Toronto Sun, Nov. 15).
November 17-19 --
"U.S. Holocaust lawyer plans Austria train lawsuit".
Much-publicized New York attorney Edward Fagan is drumming up business
among survivors of the Alpine tunnel calamity, which killed as many as
160. "The suits most likely would be filed in U.S. courts because
they typically could award bigger damages than overseas courts", even though
the article cites no nexus whatsoever between the disaster and the United
States as regards the great majority of victims, who were of Austrian or
German nationality. Imagine how strange it would seem if a train
full of Americans and Canadians crashed in Colorado and some lawyer from
Austria flew in to propose that lawsuits be filed in his country.
(Reuters/FindLaw, Nov. 14).
November 17-19 --
"Tax collector found to owe $3,500 in delinquent taxes".
From Scranton, Pa., another entry for the do-as-we-say file: "I have no
defense," says Thomas Walsh, director of the county's Tax Claim Bureau,
of the city property tax bill on his home, which he's left unpaid since
1991 and has now mounted to more than $3,500. "I just got behind."
("Pay thyself", AP/Fox News, Nov.
13).
November 17-19 --
"Coca-Cola settles race suit". The Atlanta-based
soft-drink maker has agreed to pay $192.5 million to settle charges of
race bias, "described by the plaintiffs
as the largest ever in a race discrimination class action suit".
(CNNfn, Nov.
16) (see July 21, July
19).
November 16 --
Palm Beach County "under control". "There was evidence
that the Gore campaign hoped to muscle
up the forces at its disposal. An e-mail circulated to a trial lawyers
organization sought at least 500 attorney volunteers to help out with recounts
in selected counties." (David Espo, "Bush Holds Narrow Lead in Fla.",
AP/Yahoo, Nov. 15). "The request was passed along on the Internet
E-mail list of the National Association of Trial Lawyer Executives (NATLE)
by the executive director of the group, Kathleen Wilson, suggesting they
pass along the request to lawyers on the Internet E-mail lists they're
on." The volunteer lawyers would be deployed in Volusia, Miami-Dade
and Broward Counties, with the email describing the Gore forces as "comfortable
that Palm Beach County is under control." The organization NATLE
"includes many executive directors and other officials with lawyer groups".
("Gore Campaign Recruiting Lawyers", AP/Washington Post, Nov. 14).
Judge-shopping? "Although most of the lawsuits filed to date have
been in state court, one Gore supporter filed an action in federal court
last week only to withdraw it the same day (apparently out of a concern
that the judge assigned to the case, Reagan appointee Kenneth Ryskamp,
would not look favorably upon it)." (Jay Lefkowitz, "It's the Law,
Stupid", Weekly Standard, Nov.
20). Meanwhile, "[a] group with Republican links sued TV
networks Tuesday and accused them of discouraging voters from going
to the polls in the Florida Panhandle by erroneously projecting Al Gore
would carry the state." ("Group Sues Over Gore Projection", AP/Washington
Post, Nov. 14). "In the Stephen Sondheim song, when something
bad happens in the circus, they send in the clowns. In America's
political circus, they send in the lawyers." (Gavin Esler, "Don’t
let the lawyers make a crisis out of America’s Political Drama", The
Independent (UK), Nov.
13) (cites our editor).
November 16 --
Judge shopping, cont'd. U.S. International Trade
Commission administrative law judge Sidney Harris has reprimanded Rambus
Inc. for having abruptly withdrawn its patent violation case against Hyundai
Electronics Industries Co. after it was assigned to him; the judge, who
has a reputation as tough on patent-holders' claims, concluded that the
company did not want him to be the one to handle the case and had engaged
in "blatant" judge shopping. The company denies the allegation.
(Jack Robertson, "Rambus Slammed For ITC 'Judge Shopping'", Electronic
Buyers News, Nov.
15; Dan Briody, "Litigation headaches send Rambus stock skidding",
RedHerring.com, Aug.
30).
November 16 --
They call it distributive justice. Following the lead
of numerous other overseas governments and other entities that have jumped
on the tobacco-suit bandwagon in hopes
of finding money, Saudi Arabia's state-owned King Faisal Specialist Hospital
says it is preparing litigation against international tobacco companies
to recover the costs of treating smokers, to be filed in American courts
and elsewhere. If successful, the litigation will presumably succeed
in raising the price per pack paid by poverty-level smokers in Arkansas
and West Virginia in order to ship the money off to that very deserving
recipient, the government of Saudi Arabia. ("Saudi hospital to sue tobacco
firms for $2.6 bn", AP/Times of India, Nov. 8) (& see update,
Dec. 10, 2001)
November 15 --
Foreign press on election mess. "'Got a problem?
Get a lawyer' has become a maxim of American life, whether you scald yourself
with a McDonald's coffee or lose a presidential
election." (Philip Delves Broughton, "Lawyers will be winners of contest
born in Disneyworld", Daily Telegraph (UK), Nov.
10). "The confusion over the election results has paved the way
for a stealthy and rapid seizure of power in the US. The lawyers have truly
taken over." (Julian Borger, "Lawyers are back: US is on trial",
The Guardian (UK), Nov.
11). "We are not in Florida or Kansas anymore. We are in
. . . Chad." (Mark Steyn, "She held up the ballot and she saw the light",
National Post (Canada), Nov. 13).
November 15 --
Beep and they're out. DuPage County Associate Judge
Edmund Bart "has taken extreme offense to Traffic Court visitors who allow
cellular phones or pagers to ring when court is in session. He has dealt
with them extremely -- by throwing those visitors behind bars." ("Time
for Some Order from the Court" (editorial), Chicago Tribune, Nov.
11).
November 15 --
"ATLA's War Room". Much feared by defendants, the
61 litigation groups of the Association of Trial Lawyers of America enable
plaintiff's lawyers to map out joint strategy and share in the "exchange
of documents, briefs, depositions, expert testimony, and general plaintiffs'-side
lore". The groups are noted for "Kremlinesque secrecy": "Group chairmen,
for instance, are not supposed to identify themselves as such in public,
and journalists can only get their names from ATLA by agreeing not to quote
them as chairmen. ... The association does not post the list of litigation
groups on its public Web site." However, that list includes
(according to Alison Frankel of The American Lawyer): AIDS, automatic
doors, bad faith insurance, benzene/leukemia, birth defects, breast cancer,
casino gaming, chorionic villus sampling (CVS), computer vendor liability,
firearms and ammunition, funeral services, herbicide and pesticide, inadequate
security (and its subgroup, the Wal-Mart Task Force), interstate trucking,
lead paint, liquor liability, nursing homes, Parlodel, pharmacy, Stadol,
tabloid outrage, tap water burns, tires, truck underride, and vaccines.
Recent additions include firefighter and EMS hearing loss, Allercare subgroup
of herbicides and pesticides group, laser eye surgery malpractice, MTBE,
Propulsid, and Rezulin. (Alison Frankel, "ATLA's War Room", The American
Lawyer, Oct. 16).
November 14 --
Columnist-fest. People writing about things other
than the election mess:
* How long would Mark Twain's Tom Sawyer last if he were growing
up today? He's the kind of boy who plays hooky from class,
joins a gang and commits petty crime, enjoys violent literature (pirate
stories), tortures the family cat and even smokes. "Doubtless he'd
be in therapy three times a week and jacked up on Ritalin. Or --
most likely -- he'd be in jail." (Alex Beam, "Tom Sawyer and the
end of boyhood", Boston Globe, Oct.
31).
* Don't count on the black-reparations bandwagon to provide benefits
over the long term to anyone but the lawyers and other middlemen in charge,
argues Linda Chavez ("Johnnie Cochran plays his card", TownHall, Nov.
8).
* The case for Paula Jones's outraged modesty in that Arkansas
hotel room is looking pretty thin now that she's taken her clothes off
for Penthouse, but what exactly did reformers think would happen
once the law began to turn unsubstantiated sex
stories into enormously lucrative potential claims? "Women like Jones
have been lured into becoming the workplace equivalent of Third World terrorists
strolling around the office with suitcase bombs." (Sarah J. McCarthy,
"The Victim in the Centerfold", LewRockwell.com, Nov.
11).
November 14 --
"Fla. DUI Teen Sues Police". "A teen-age driver
seriously injured in an accident is suing the city because a police officer
failed to arrest him for drunken driving minutes before the crash."
Richard L. Garcia of Bradenton, Fla. alleges that officers told him to
drive home rather than taking him into custody despite his intoxication,
which makes it their fault that
he got into a serious accident minutes later. (AP/Yahoo, Nov. 13).
November 14 --
"Survey: Jurors Anti-Big Business". "Potential jurors
often mistrust corporations and think they must impose billions of dollars
in punitive damages to send them a clear message, according to survey results
released Friday." The survey is set to appear in this week's National
Law Journal. (Reuters/CBS News, Nov. 10).
November 14 --
"Internet Usage Records Accessible Under FOI Laws".
"In an opinion sure to heighten the tension between some parents and school
systems over the Internet's role in publicly financed education, a
New Hampshire judge has decided that a parent is entitled to see a list
of the Internet sites or addresses visited by computer users at local schools."
Unless overturned on appeal, the ruling will entitle parent James M. Knight
of Exeter, N.H. to inspect the logs of general student and faculty Internet
use, not just those of his own children. However, the log files
will be redacted in an attempt to prevent the identification of individual
user names and passwords. Knight, a proponent of filtering/blocking
software, had made the request under the state open records law.
(Carl S. Kaplan, "Ruling Says Parents Have Right to See List of Sites Students
Visit", New York Times, Nov.
10 (reg); Slashdot
thread).
November 13 --
Election hangs by a chad. Once underway in earnest,
plenty of observers fear, litigation on the 2000 presidential
vote will "only spawn more litigation and drag on and on, to the detriment
of the political system." (R.W. Apple Jr., "News Analysis: Experts
Contend a Quick Resolution Benefits Nation and Candidates", New York Times,
Nov. 12
(reg)). With the filing of a federal court action by the Bush people
to block a planned "hand recount" in Palm Beach County, the legal battling
now officially involves the candidates themselves; earlier, the Gore people
had been backing litigation filed in the name of Florida residents without
actually filing on their own (David S. Broder and Peter Slevin, "Both Sides
Increase Legal Wrangling As Florida Begins Slow Hand Count", Washington
Post, Nov.
12). "There is a well-known trick among statistical economists
for biasing your data while looking honest. First, figure out which data
points don't agree with your theory. Then zealously clean up the offending
data points while leaving the other data alone." Such a bias would
be introduced in the Florida vote by recounting pro-Gore counties like
Palm Beach, Broward and Dade so as to validate more ballots by inferring
voters' intent, without doing the same for pro-Bush counties like Duval
(Jacksonville). (Edward Glaeser, "Recount 'Em All, or None at All",
Opinion Journal (Wall Street Journal), Nov.
11). "The leverage that the Gore camp has," writes columnist
Molly Ivins, "is an injunction to prevent certification of the Florida
result until that's settled [namely, its expected demand for a Palm Beach
County revote if the pending "hand recount" doesn't do the trick]. Without
Florida, Gore wins the Electoral College." Admittedly, however, "[a]
system that managed to acquit O.J. Simpson cannot be counted upon to produce
justice." ("The right to seek justice is undeniable in Florida",
Fort Worth Star-Telegram, Nov. 11).
If you're looking for truly ripe ballot irregularities, George Will
suggests, look to the heartland: "Election Day saw Democrats briefly succeed
in changing the rules during the game in Missouri: Their lawyers found
a friendly court to order St. Louis polls to stay open three hours past
the lawful 7 p.m. closing time. Fortunately, a higher court soon reimposed
legality on the Democrats and ordered the polls closed at 7:45."
("It All Depends on the Meaning of 'Vote'", New York Post, Nov.
12). A nice thing about those emergency public donation funds to
hire teams of lawyers: there's no limit on contributions and the parties
will be really grateful (David Greising, "Al's Now a Boy Named Sue, and
It's Not Helping", Chicago Tribune, Nov.
10). Meanwhile, we note that a prominent Democratic campaign-law
expert is denying that his party is "overlawyering" the Florida situation,
while the New York Post's Rod Dreher uses another variant on the
same term in discussing mistaken ballots: "Despite what some in this overlawyered
culture seem to believe, the courts have no obligation to protect people
from their own carelessness." (Don Van Natta Jr. and Michael Moss,
"Counting the Vote: The Nerve Center", New York Times, Nov. 11,
quoting Robert F. Bauer, no longer online; New York Post, Nov. 12).
November 13 --
Vaccine compensation and its discontents. One of
the more recently adopted no-fault compensation systems aimed at displacing
personal injury litigation is the federal childhood
vaccine compensation program, which since 1988 has paid out $315 million
to some 1,445 claimants and turned away another 3,372 claimants on the
grounds that they could not prove that the vaccines caused injury.
The system has substantially reduced the number of lawsuits filed against
makers of DPT (diphtheria, tetanus and pertussis (whooping cough)), which
"dropped from 255 in 1986 to 4 in 1997". However, the no-fault system
itself partakes of some of the drawbacks of litigation, including delay
and adversarialism. One thing it has succeeded in curbing,
however, is jackpots for trial lawyers: "Lawyers representing claimants
get paid whether a claim is successful or not, but they get closely monitored
hourly rates -- not the jackpots they occasionally win when they sue, say,
tobacco or tire companies." (Doug Donovan, "Needle damage", Forbes,
Sept. 4).
November 13 --
Don't give an inch. In Sunderland, England, merchant
Steven Thoburn has become the first vendor to be prosecuted for sticking
to English weights and measures despite an official mandate to convert
to European metric alternatives. To coordinate with European Union
rules, "British laws came into effect at the beginning of this year imposing
fines of up to $8,000 and possible imprisonment on retailers if they refuse
to adopt liters and meters." ("Defiant Brit Vendor Taken To Court",
AP/FindLaw, Nov. 8).
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