| ARCHIVE -- AUGUST
1999 (I) |
August 14-15 -- The
stuffed-grape-leaf standard. "Ellen Vargyas,
senior counsel at the National Women's Law Center, said the $300,000 in
damages, per incident, awarded to victims of sexual harassment, as specified
in the 1991 Civil Rights Act, 'are not exactly what I would call a pot
of gold.'...To me, $300,000 is not only a pot of gold, but it equals the
bottom-line value of approximately 480,000 grape leaves, stuffed and rolled.
When you roll and stuff grape leaves for a living, or toss pizza crusts
for ten hours a day, money has a way of taking on new meaning. 'Let's see,
you mean if I lose this lawsuit, I will have to roll and stuff grape leaves
nonstop from now until I'm 68?'" -- Sarah J. McCarthy, Pittsburgh restaurant
owner (reprinted in Voice
of a Few Americans/Common Sense webzine; originally appeared in
the Chicago Tribune April 3, 1995). (full
story)
August 14-15 -- Our
award-winning errors. The "404 Not Found" message, or
error
page, is the one you encounter if you try to enter a misspelled, obsolete,
or otherwise non-working address on a website, such as http://overlawyered.com/sue_for_fun.html.
We're pleased to announce that ours won the
Cool 404 of the Day award (August 5) (link down at last check) from Cool404.com
and also found its way into the 404
Research Lab's listing of Great
404s of the Web.
August 14-15 -- ABA
delegates defeat measure aimed at curbing "pay-to-play". In
something of a surprise, delegates narrowly (by less than 20 votes) turned
down a proposed addition to the non-binding Model Rules of Professional
Responsibility which would have declared it improper for lawyers or law
firms to donate or raise funds for elected officials in exchange for legal
work (see August 11 entry below). "'It's very, very tough [to change
things] because lawyers are effectively the source of money for judicial
campaigns' and the campaigns of other state officials, including state
treasurers," according to Geoffrey Hazard, professor of law at the University
of Pennsylvania and chairman pro tem of an ABA commission on ethics rules
changes. Edward W. Madeira Jr. of Philadelphia's Pepper, Hamilton
is disappointed because the practice reinforces, in a reporter's words,
"public perception that judges favor the individuals and groups that contribute
to their campaign funds." (Janet Conley, Fulton County Daily Record
-- full
story).
August 13 -- "Somebody
might trip." At 80 St. Mark's Place in New York's
East Village, in front of a locally famed repertory film theater, is a
stretch of cement where stars like Gloria Swanson, Joan Crawford and Myrna
Loy have left their hand prints, shoe prints and signatures over the years
in a mini-homage to L.A.'s Hollywood Boulevard. Last year city inspectors
decided the stretch of sidewalk was out of code compliance, and demanded
that theater owner Florence Otway pave it over or remove it to be replaced
by a conventional sidewalk. City spokesman Mark Patterson pointed
out that its surface was uneven: "Somebody might trip," he said, adding,
"We don't want people to trip and fall. The city might be liable."
(James Barron, "A Walk of Fame's Melodramatic Turn", today's New York Times
-- link now dead). New York City, which pays
out hundreds of millions a year in injury litigation, for many years
has been the target of a huge number of sidewalk slip-and-fall claims;
Richard Miniter wrote in 1996 that trial lawyers have fingered nearly
90 percent of the city's blocks as having sidewalks that are in their
view hazardous.
August 13 -- Don't
link or I'll sue! In a notorious
1997 episode, the Ticketmaster company asserted a legal right to forbid
other websites from "deep linking" to order forms that resided on interior
pages of its site, a practice that allowed visitors to bypass introductory
pages containing ads Ticketmaster wanted them to see. Taken
seriously, the notion of requiring linkers to come in only through a site's
front door would eviscerate much of the usefulness of the web (including
sites like this); for example, unable as a routine matter to point to particular
news stories, we'd have to point instead at the publisher's top page and
advise readers to start a cumbersome search for the content. So it's
worrisome that legal complaints over deep linking have reportedly
led to a series of out-of-court settlements in which defendants have
agreed to link only to a site's top page.
The equities might seem to shift when a link points not
to a integral page on the foreign site, but to just one of the resources
composing that page, such as a graphic or an audio/video clip. If
BigWebCo pays a composer to develop soothing background music for its site,
can I really obtain the same background music for my site gratis by pointing
at their audio file, imposing more work on their servers while I'm at it?
The latest dispute, between Universal
Pictures and a site called Movie-List
that features trailers of forthcoming movies, may now have been resolved
after either a clarification or a rethinking of Universal's position, depending
on how you read the correspondence
between the parties that Movie-List's proprietor, Jean-Pierre Bazinet
of Ottawa, has posted. Universal litigation counsel Carolyn Hampton
alarmingly wrote Bazinet that "you are not permitted to link to other sites
that contain our copyrighted material without our authorization".
However, in later correspondence, Hampton said the company objected only
to Movie-List's linking directly to the video clips of trailers on its
servers, and that it was free to link to the full webpage from which the
clip was accessible, a resolution that Bazinet accepted. A noteworthy
feature of the correspondence was the terrified attitude of Movie-List's
internet service provider, Simple-Net, which didn't want to risk itself
getting sued by the giant studio: "The situation is now that you must abide
WHATEVER Universal insists upon," it wrote Bazinet. "If not, we will have
no choice but to suspend your site." (see July 21 entry).
In his weekly column
yesterday, Salon's Scott Rosenberg warned against developing "a climate
in which every Web author needs to check with every link target before
putting up a page," asking, "What about individual users -- is "deep bookmarking"
to become a problem too? How about passing around a "deep link" on
a mailing list?" Other coverage and commentary on the issue has appeared
in Wired.com,
IT-Director.com,
and from attorney Jeffrey
Kuester.
August 12 -- Age-bias
law expands. It's already easy to violate
age-discrimination
law without meaning to, and it keeps getting easier. California
Gov. Gray Davis has signed a bill that makes it unlawful to target more
highly compensated workers for layoffs -- baldly rational though that policy
may often be as an economic matter -- on the grounds that high compensation
is often a proxy for age. (AP, Aug. 4, link now dead). And
the August 16 Time (not online) reports that trial is expected to
begin soon on Michael Sisler's suit against the Bergen Commercial Bank
in Paramus, N.J., for discriminating against him based on his youth (he
was given a vice presidency at the tender age of 25, but things didn't
work out). Most age-bias laws cover only workers over 40 and are
"one-way", providing a right to sue over preferences shown to younger but
not older rivals, but New Jersey's high court ruled in February (opinion)
that the more ways to sue the merrier. (AP/Phila.
Inquirer,
Feb. 25, link now dead). Time's John Cloud writes that eighteen other
states have statutes that could be construed the same way as New Jersey's:
"next time you tell the new kid down the hall that he needs to pay his
dues, you could end up paying them for him".
August 12 -- Even
the chance of loser-pays helps keep 'em honest.
It happened in response to some contempt of court that the judge found
fairly egregious, and in a bankruptcy setting, where judges have unusual
leeway, but it still reminds us that there's nothing inevitable or foreordained
about our being the one Western democracy
that refuses to make litigants pay when they inflict harm on their opponents:
U.S. Bankruptcy Judge Mary Walrath of Wilmington, Del. has ordered the
pilot's union to pick up Continental Airlines' legal fees for having tried
to relitigate claims settled in the airline's 1993 reorganization.
The pilots had rolled the dice in hopes of a $1-billion-dollar back pay
bonanza based on seniority claims. (Delaware Law Weekly, July
28 --full
story)
August 12 -- Leave
the Scouts alone. As happens often, the
Chicago Tribune runs the most
sensible editorial on last week's New Jersey high court ruling, urging
the Scouts to reconsider their policy of barring gays from membership but
saying in the mean time the law's role is to respect their freedom of association.
Overlawyered.com's
editor is quoted making similar points in Wendy Davis's New
Jersey Law Journal write-up.
August 11 -- "Your
perfect birth control...blocked?" Highly
recommended: the September Glamour,
which hit the stands yesterday with a major article by Leslie Laurence
on trial lawyers' devastating assault on Norplant, the long-lasting contraceptive
that consists of tiny hormone-releasing rods inserted under the skin of
a woman's upper arm. Despite health professionals' widespread view
that the device is a valuable one whose risks are low, lawyers using billboards,
TV ads and media scare campaigns have recruited an astounding 50,000 women
to sue the manufacturer, concentrating originally on silicone-disease theories
(since the device contains that substance) and then, after the collapse
of the scientific basis for those theories, switching to claims based on
side effects common to all hormonal contraceptives, such as weight gain
and irregular bleeding. Glamour reports that many plaintiffs
sued based on vaguely described side effects they'd never reported to their
doctors, and that some, even after signing up to sue, continued to recommend
the device to friends, said they were glad they'd used it, and went back
to their doctors to have another set put in.
Norplant litigation has gone badly for the plaintiffs
-- "It was like she just wanted to hit the lotto" said a juror in Brownsville,
Texas, after one verdict for the defense -- but the legal success has come
at devastating cost to the manufacturer, American Home Products, which
might still at some point find their best option to be buying out the suits
for some large sum despite their flimsy basis. One result, says the
magazine, is a continued departure of capital from the contraceptive field;
few firms will invest in researching new birth-control methods when it's
so easy to get caught up in a legal catastrophe. Leading entrepreneurial
firms on the plaintiff's side include Charleston, S.C.'s Ness, Motley,
Loadholt, Richardson & Poole, with 17,000 cases, and Houston's O'Quinn
and Laminack, with more than 3,500 (see item for August 4, below)
"If his side wins," the article concludes of O'Quinn associate Arturo Gonzalez,
"millions of women will lose." The article is not online, but you
can read a related piece by Fordham
law professor Marc Arkin.
August 11 -- Cited
in Andrew Tobias's online column. After
starting with a classic list of wacky warning labels ("Warning: contains
nuts" on a package of peanuts is one favorite; then there's the packaging
on an iron, "Do not iron clothes on body") the personal-finance
expert observes that "one reason for all this obsessive labeling is
fear of lawsuits" and suggests this site as
a resource for those who think things might have gotten out of hand.
It's only fair to point out in return that few have made a greater contribution
toward public understanding of the absurdly overlawyered area of auto insurance
than Andrew Tobias himself: see the discussion in his recent book My
Vast Fortune, and don't miss his devastating article
in the October 1996 Worth on the politically fateful entanglements
between trial lawyers and some well-known consumer advocates.
August 11 -- No
comparison. Speaking of which, an article
in today's New York Times (link now dead) on Japan's famed sokaiya
corporate shakedown-artists reports that they're attempting to refurbish
their image. The sokaiya have long been known for gathering
dirt about business practices and publicizing it at shareholder meetings
and elsewhere, a threat companies can avert only by making handsome payments
to their syndicates. Now veteran sokaiya Kaoru Ogawa is trying
to recharacterize his activities: "I'm the Japanese Ralph Nader," he says.
Times reporter Stephanie Strom calls the comparison "a stretch".
August 11 -- ABA
thinks it can discourage "pay-to-play". The
vote, slated for the Atlanta meeting, was on a model rule aimed at curbing
lawyers' practice of contributing to politicians in exchange for official
work. [The proposal was narrowly defeated in a delegate vote; see entry
for August 14-15]. "[Currently if outside counsel] are going to be considered
for legal work they have to be counted among the campaign contributors,"
said Richard Phillips, head of the ABA's business law section. "It's
a poor way to compete for legal work and it's very destructive of the integrity
of the government process". One question is whether there's hope
of enforcing such a standard now that contingency fees for government work
can turn lawyers into overnight billionaires -- an immensely more lucrative
and thus more tempting kind of patronage than the hourly-fee transactional
work that raised the original concerns. (Reuters, link now dead)
August 10 -- Like
calling the Orkin man to talk about bugs. Descending
further into self-parody at its annual convention in Atlanta, the American
Bar Association summons O.J. Simpson defense lawyer Johnnie Cochran for
a panel discussion on truth in the legal profession, as well as potential
disbaree Bill Clinton to lecture Senators on the perils to the administration
of justice of not confirming his nominees to the bench as promptly as he'd
like. Cochran impresses attendees by sending an 18-page biography
that "lists everything from a soap opera appearance to being named one
of the most glamorous men in history", Reuters reports. By contrast,
Harvard law professor David Wilkins, who directs the law school's Program
on the Legal Profession, submitted a three-paragraph bio. (Fox News (link
now dead)/New
York Times).
In other convention news, ABA head Philip Anderson publicly
compared city gun suits to the civil
rights cause of the 1950s (overturning Plessy v. Ferguson,
scoring a payday with help from the mayor's trial-lawyer friends -- hey,
what's the big difference?). (Fox News -- link now dead). The present
state of tort law gives municipalities no claim against gun makers, but
lawyers have lately made up a variety of new theories they'd like to present
to courts that would hold gun makers retroactively liable. Anderson
criticized efforts by state lawmakers to interfere with this process, suggesting
the emergent new maxim that now seems to hold sway at places like the A.B.A.:
any lawyer should be able to concoct any new theory that allows for the
extraction of money from anyone else, and whether such a new theory succeeds
will be resolved by way of interactions between the Third Branch (the judiciary)
and the Fourth (the trial lawyers)
This diverges sharply from the traditional separation-of-powers precepts
still preserved in musty library stacks, under which legislators counted
as a surprisingly
important authority on what was and was not to be made legal.
August 10 -- You
made me defame myself. Even plaintiff's
employment lawyers can get a bit sheepish explaining the theory behind
the "doctrine of compelled self-publication," which works as follows: the
employer takes every conceivable step to avoid liability for "workplace
defamation", including not breathing a word to co-workers about the reasons
it's letting an employee go, and successfully forbidding any discussion
of the circumstances afterward with reference-checkers or other outsiders,
who instead get fobbed off with blandly neutral formulas. But it
still loses the ensuing defamation lawsuit, on the grounds that the employee
himself spread the allegedly false rumors about his bad performance, having
felt forced to do so in order to explain his situation in later job applications.
"If you're the one spreading false information, it looks strange" to turn
around and sue a former employer for defamation, concedes Hartford practitioner
Jonathan Gould. But the theory has worked for complainants, including
a hospital security guard who got $200,000, and Danbury, Ct. lawyer Christine
M. Ellis predicts it will be a "wonderful tool" in suing for employees.
(Scott Brede, "When
Candidness Is a Catch-22", Connecticut Law Tribune, July 7).
August 9 -- More
things you can't have. Latest food items
to become unavailable due to fears of liability, according to Wall Street
Journal news articles in July: parents' care packages of food to kids
at camp ("[c]amps worry about getting sued should a child get sick from
an allergic reaction or from rotten brownies," as well as raising other
objections; July 28); burgers cooked medium-rare in restaurants (diners
at establishments in San Francisco and Carnegie, Pa. were recently allowed
to obtain pink burgers by signing written liability releases, but other
restaurants won't make even that concession, though E. Coli poses
relatively little risk to adults in good health; July 15). (New
York Press editor Russ Smith commented
on the summer-camp report; scroll down to near bottom of his column.)
August 9 -- How
to make it as a litigious NYC tenant. "The writer
of this book lived rent free in New York City and was paid $55,000 from
his landlord!!!". That's the pitch from the pseudonymous author ("Tenant
X") of an 88-page booklet entitled Tenant
Power, which for $15 will offer advice on how to make life unhappy
for someone so unwise as to have rented you an apartment (have the walls
of your apartment drilled to test for asbestos; if finally evicted, tell
the judge you need to get back in to retrieve medicine). The August
4-10 Village Voice has qualms about the booklet but not on any moral
grounds; instead it's upset that much of the advice isn't fully accurate.
(Full
story).
August 9 -- Hate-crime
laws: why they aren't liberal. Heidi
M. Hurd, professor of law and philosophy at the University of Pennsylvania,
told the House Judiciary Committee last Wednesday (8/4) that such
laws "revolutionize" traditional criminal-law mens rea standards
in order to convey society's disapproval of hateful character traits and
beliefs. That goal is distinctively non-liberal, she argues: "Political
liberals allow that the State may use its power to make us act in ways
that are right; but they generally insist that the State may not use its
power to impose a particular conception of the good life on its citizens.
It may not legislate virtue or suppress vice. It may not invade the realm
of private beliefs, desires, hatreds, biases, hopes, ambitions, etc. In
short, it may make our actions good, but it may not make us good actors.
"Those who favor hate crime legislation, and its implicit license to
use the power of the state to suppress vice and encourage virtue, have
to admit that they are not liberals. They are, rather, 'political perfectionists,'
who view the legitimate power of the state as extending to legislation
that will nurture in us charitable, kind, courageous dispositions, and
eliminate selfish, cowardly, cruel dispositions. Political perfectionism
is not without impressive defenders. But the power that it bequeaths to
the State is breathtaking....such legislation suggests that the state has
abandoned the constraints of liberalism and extended its power to affect
not only what we do, but who we are." (Full
testimony)
August 7-8 -- Weekend
reading. Pixels to take to the beach or cottage:
* Alex Beam in the August
Atlantic
takes a look at "the extreme sport of First Amendment law" -- litigation
by celebrities who sue tabloids like the Enquirer and the Globe
for libel, invasion of privacy and sundry other torts. Sign of the
overlawyered times: some tabloid-haunted celebs insist their wedding guests
sign a nondisclosure agreement if they want to be admitted to the ceremony.
"That's so tasteful," scoffs Gerson Zweifach of Williams & Connolly,
who represents tabloid defendants. "You open up the Tiffany invitation
and this contract falls out of the envelope."
* Aside from their professional interest to writers
and editors, word counts carry significant consequences for litigators
because of the rigid limit on the length of their briefs. Lawyers
for a man fighting
extradition to Canada on kidnaping charges recently faced possible
sanctions for having filed a brief before the Seventh Circuit which they
said was 13,824 words long, just under the 14,000-word limit for appellate
briefs set by Fed. R. App. 32(a)(7), but which in fact contained 15,056
words, well over the limit. The judges looked
into the question and found that Microsoft Word, unlike its competitor
WordPerfect, fails to count footnotes when asked to give a word count for
a block of highlighted text. Microsoft is promising a fix, Declan
McCullagh reports
in the August 4 Wired, and in the mean time the court agreed
the lawyers didn't merit sanctions.
* Overlawyered.com's editor devoted his
July
Reason
column to the question of why American attorneys are so unpopular these
days: was it unsporting for Jurassic Park audiences to burst into
applause when the dinosaur ate the lawyer?
August 7-8 -- Not
so uncontroversial. Who could be against
the proposed "Victims' Rights Amendment" to the Constitution? Plenty
of sensible people, it seems, including Beth Wilkinson, a member of the
prosecution team in the Oklahoma City bombing case, who writes in yesterday's
Washington Post (August 6; link now dead) that following the procedures
prescribed in that amendment could have substantially impaired the chance
of getting convictions against bombers Timothy McVeigh and Terry Nichols.
Chicago Tribune columnist Steve Chapman (July 22 column; link now
dead) points out that many crimes (such as a bank robbery where there are
many customers present) place a large number of bystanders in harm's way,
"each of whom [under the proposal, apparently] has to be kept informed,
allowed to make his views known, and invited to attend every public proceeding
related to the case until the perpetrator has been released from prison,
which could be five or 10 years later....If you want a bureaucrat's full-employment
act, here it is." The measure has been endorsed by Bill Clinton,
Bob Dole and Al Gore, among many others.
August 6 -- Courts
actually begin to define "harassment"; activists in shock. Proponents
of expansive harassment law publicly hailed last year's Supreme Court ruling
in Oncale
v. Sundowner Offshore Services as a victory for their side because
it allowed workers to sue over misbehavior by co-workers of their own sex.
But Justice Scalia's
opinion also took pains to clarify for the first time what does and
does not qualify as harassment: the complained-of conduct must be directed
at the worker "because of" his or her sex, ordinary horseplay isn't enough,
and the role of the courts isn't to enforce a general civility code in
the workplace. This report by the Chicago Tribune's Jan Crawford
Greenburg (reprinted in St. Louis Post-Dispatch; link now dead)
quotes Lambda Legal Defense and Education Fund legal director Beatrice
Dohrn as saying her colleagues were aware the latter language might be
significant but decided to focus on portions of the decision "we hoped
would be picked up on," a franker-than-usual acknowledgment of the way
advocacy groups try to spin the coverage of high court cases. But
many lower federal courts noticed Scalia's language and, it seems, are
taking it seriously by screening out cases that fail to meet the standard.
That trend meets with peals of outrage, recorded here, from plaintiff's-side
attorneys who liked things better when the question of what constitutes
harassment was more poorly defined, since that improved their chances of
getting every case to a jury. Notable background fact: Scalia in
Oncale
spoke for a unanimous Court.
August 6 -- News
judgment. Last week it was announced that
arbitrators had awarded more than $2 billion in legal fees to tobacco
lawyers representing just two of the fifty states, Mississippi and
Massachusetts. Mississippi's $1.4 billion award is slated to cram
nearly $340 million into the pockets of Pascagoula attorney Richard Scruggs,
brother-in-law of U.S. Senate leader Trent Lott, while on Tuesday the Boston
Globe's
Brian MacQuarrie reported that a preliminary analysis of that state's $775
million fee award "indicates attorneys may be paid nearly $5,000 per hour
for their work".
How has the New York Times, newspaper of record,
chosen to cover these revelations? Its total coverage of the arbitration
awards has consisted of a 150-word Associated Press dispatch that ran on
page 25 of Sunday's edition, which itself included nothing critical of
the awards except to note at the end that tobacco companies found them
excessive. Perhaps the Times was too busy preparing to let
fly with another round of advocacy from its reporter William Glaberson,
who's argued that public concern about the power of trial lawyers is based
on mere "myth" and "fantasy" concocted by conspiratorial tort reformers.
August 6 -- The
Jarndyce
v. Jarndyce of prison litigation. Twenty-eight
years after the episode from which it arose, the wrangling over corrections
officers' actions during the Attica uprising drags on, with the Second
Circuit sending Blyden v. Mancusi back for a new trial.
(New York Law Journal, August 4 -- full
story)
August 6 -- Michigan
high court upholds malpractice reform.
Not
all state supreme courts are looking for ways to frustrate legislators'
efforts to bring litigation under control. (Detroit
News
editorial).
August 5 -- "Settlement
bonds": are guns next? When trial lawyers
started lining up pliant mayors to sue the
gun industry, everyone kept insisting that the big issue wasn't money:
this was really a public-spirited endeavor aimed at changing the industry's
practices. In Monday's (August 3) issue of The
Bond Buyer, however (online to subscribers only), editor
Kieran Beer says a number of Wall Streeters are now seriously talking up
the prospects for the issuance of "bonds backed by gun-settlement payments
to municipalities," on the model of the tobacco-settlement bonds that are
expected to be floated soon. The idea behind settlement bonds is
to allow the politicians and lawyers -- who, according to the settlement's
facial terms, would be entitled to receive a stream of payments spread
out over decades -- to scarf down billions immediately in exchange for
signing over the flow of future payments to the financiers.
Bond Buyer editor Beer is somewhat skeptical about
the chances for gun bonds to work in practice. He points out that
there's bound to be far less money in guns than in tobacco, and also doubts
that the settling parties "will agree to a healthy trade in gun sales in
order to insure a revenue stream for gun-settlement bonds," which is, he
notes, the "kind of deal that was struck with big tobacco" (in itself an
observation which virtually none of the backers of the tobacco deal have
been willing to admit for the public record). On the gun round, attorney
Ken Bond of Squire, Sanders &
Dempsey says that for optimal results "[t]here should be capital markets
people holding the hands of the litigation people so that settlement payments
are picked up at the point of sale" rather than having to be extracted
from corporate treasuries -- another telltale sign that what is being negotiated
here is more akin to a new tax than to a damages settlement (see July 29,
below).
In the old days, Wall Street earned its commissions by
arranging financing for productive enterprise; now it chases the fast buck
by facilitating the expropriation of the industries it once helped build.
August 5 -- Spreading
to the U.K. "Martin Holdgate, chairman of the Royal Geographical
Society, had some harsh things to say about our new litigation or 'blame'
culture last week. He argued that our children were becoming softies as
teachers no longer dared take them on adventure expeditions, for fear of
parental lawsuits in the event of an accident. 'Blame culture and an eagerness
for litigation have trickled down to the children themselves,' he said."
(Auberon Waugh in yesterday's Daily Telegraph (London); full
column).
August 5 -- Progress
of the Overlawyered.com site. As we complete our
fifth week, word continues to spread about this site, and traffic continues
to grow. One of the first larger sites to link to us was About.com
(formerly The Mining Company), which selected us as a resource in its category
for
Current Events -- Law.
Not long afterward we were picked as a resource on FindLaw/LawCrawler,
one of the most widely used legal search tools, as part of their Litigation
category.
August 4 -- No
spotlight on me, thanks. As one of the wealthiest and
most successful plaintiff's lawyers ever, Houston's John O'Quinn (breast
implants, tobacco,
politics)
has been known to call press conferences at which he's leveled charges
highly damaging to his opponents' reputations, accusing them (for example)
of conspiring to "remain
silent, conceal or suppress information" about problems with their
products and operations. So what happened June 4 when O'Quinn was
himself sued by a group of unhappy former breast-implant clients seeking
class-action status against him? As Brenda Jeffreys reported in the
June 14
Texas Lawyer, O'Quinn "didn't hesitate before pummeling the class action
lawyers with a libel suit" charging the lawyers with "encourag[ing] the
news media to disseminate false, slanderous and libelous comments about
Plaintiff" -- said encouragement consisting of their press release about
the lawsuit, and the press conference they were planning that would have
explained it further.
Had the lawyers challenging O'Quinn succeeded in holding their press
conference, interesting questions might have been aired. Their suit
charges that a group of women numbering at least 2,000 were wrongfully
overcharged tens of millions of dollars in claimed expenses, and that the
firm of O'Quinn and Laminack breached its fiduciary duty to them; it sought
a fee forfeiture totaling $580 million. But O'Quinn's firm rushed
to court to ask for a temporary restraining order to prevent the lawyers
from holding a press event, and on June 7, while a judge was considering
that motion, they agreed to a gag order and called off the conference they'd
scheduled for that day. The whole process -- from the first public
notice of the suit to the gag order in hand -- had taken only three days.
"O'Quinn's quick action may have prevented a firestorm of public attention
to the class action suit," writes the Texas Lawyer's Jeffreys.
It is not recorded whether any of the defendants O'Quinn has sued have
ever tried, let alone succeeded in, such a tactic against him.
August 4 -- For
your own good. Boone County (Ky.) High School, in suburban
Cincinnati, has added new clauses to its dress code prohibiting students
from wearing clothing that it deems unsafe, such as sandals without back
straps that might increase their chance of tripping in a stairway or corridor,
yesterday's
Cincinnati
Enquirer reports. Also banned are excessive
jean lengths, again because students might trip on them. "We're not
trying to take away anyone's personal freedom," declared assistant principal
Ken Spurlock. Seventeen-year-old Malia Novak said she could live
with the new rules though they would mean dropping many favorite pairs
of shoes from her school wardrobe, but said, “I think people probably trip
because they're clumsy, not because of their shoes”.
The rules will serve students as good training for life in a broader
society whose institutions, whether from sheer paternalism or for fear
of being sued, are ever more anxious to suppress behavior by which people
might hurt themselves. Boone also bans the carrying of book bags
and backpacks unless they are made of mesh or a transparent material, thus
following the example of many other schools which treat their students
as perpetually under suspicion of being little Dylan-Klebolds-in-training.
August 3 -- No
need for speed. The state courts in New York have a reputation
as among the nation's slowest, and apparently some local lawyers like things
that way. Matt Fleischer writes in the August 2 New York Observer
(link now broken) that a plan by the state's top administrative judge to
speed up case resolution is meeting with heated resistance from bar associations
and legal practitioners. Some lawyers worry about logistical snafus,
but others -- well, others just seem to like to keep the option of dragging
things out. Managing attorney Poppy Quattlebaum at Cadwalader, Wickersham
& Taft warned that faster resolution of cases might be more stressful
on parties and result in higher lawyers' bills. Veteran plaintiff's
attorney Harvey Weitz called the scheme "a needless intrusion into our
offices" and pointed to lead-paint suits as the sort of area where he did
not necessarily want to move to trial quickly. "You want to
take those cases to trial when the injuries begin to manifest themselves;
it’s almost the later the better," he said. (A cynic might see the
same process as holding an inventory of client kids, aware that a certain
percentage will develop troubles in their lives, such as poor grades or
behavioral problems, that can be retrospectively blamed on paint exposure.)
Meeting with equal resistance is a plan by Chief Administrative Judge
Jonathan Lippman to eliminate the current case assignment system, which
often shuffles cases from judge to judge, in favor of assigning each case
from the start to one jurist who will be responsible for it through resolution.
"In the federal system," explains Fordham law professor Matthew Diller,
"the litigants always know they have to answer to the same judge, so when
they engage in shenanigans, they know they're going to be right in front
of the same judge." "They prefer judge-shopping, that's what it's
all about," Ross Sandler, who directs the Center
for New York City Law at New York Law School, told Fleischer.
Court-watchers sometimes use backlog figures as a way of getting a handle
on the delay problem, but judges have their own ways of gaming those numbers.
"Inventory can be worked down in many wonderful ways," said Judge Elliot
Wilk. "I have between 500 cases and 1,500 cases. I can get my inventory
from 1,500 to 500 in a week. How? I trust other judges know
this: You mark 'presumed settled.' You haven't heard from the parties,
they probably settled but didn’t call."
August 3 -- All
have lost, and all must have damages. From the July 20
Texas
Lawyer comes this tale ("Strange
Days Indeed", by Janet Elliott) of the state of personal responsibility
in today's courts: Crown Life Insurance Co. of Canada was one of numerous
insurance companies tarred by the "vanishing-premium"
fiasco of the 1980s, in which a speculative form of insurance predicated
on the continuation of high interest rates was pitched to unwary prospects
but quickly lost its value when rates plunged instead. Litigation
on behalf of 22,000 U.S. policyholders eventually resulted in a $27 million
settlement. But a separate suit against Crown was wending its way
forward in Texas courts, on behalf of William Casteel, one of its own salesmen
who maintained that he, too, was a victim. Why? Because he'd
sold so many of the policies in his local community that he became a local
pariah when they blew up. His lawyer argued that Casteel "became
suicidal and was treated for depression" after friends and fellow churchgoers,
upset over his role in sweet-talking them into purchasing the policies,
ostracized him. A Texas jury proceeded to order Crown to pay Casteel
$36 million, a figure built up from $6 million in mental anguish and $1.5
million in lost income, subject to trebling under the state's consumer-fraud
statute, prejudgment interest and attorneys' fees.
In other words, one of the salesmen who carried out the alleged deception
was judged to deserve more from the parent company than all 22,000 victimized
customers rolled together. The verdict did not last long, at least
in its full $36 million plenitude: a district judge overrruled it on grounds
Casteel had no standing to sue as a victimized insurance "consumer", an
appeals court reinstated it but threw out its emotional-damage component,
and the Texas Supreme Court last month ordered an entirely new trial.
Much to the frustration of the defendants, however, it left intact the
new right of Lone Star State insurance agents to sue for "deceptive practices"
they themselves helped implement.
August 2 -- Polly
in Margaritaville. The St. Petersburg Times reported
last month (July 2) that Theodore Nobbe had won
acquittal from felony charges that could have sent him to prison for
five years. The offense he was charged with? Dunking the head
of a friend's parrot in his tequila-based drink several times, allegedly
to see if it would get drunk. The incident took place in August of
last year at the local Bombay Bicycle Club when a fellow patron reported
she'd seen Nobbe and a friend engaging in the psittacine abuse. Nobbe
denied it, and the evidence was not the strongest: no one besides the complainant
witnessed the alleged plying of the bird with liquor, but a police officer
said the creature's upper portions seemed damp when he was called to the
scene, and a Humane Society officer said that when the bird was later brought
into the shelter it ate voraciously, a pattern consistent, she averred,
with its having the "drunken munchies". Animal-rights
advocates jammed prosecution switchboards demanding that the book be
thrown at Nobbe, a 27-year-old Clearwater resident who'd had no previous
problems with the law. Prosecutors said they had to charge him with
felony as opposed to misdemeanor animal abuse because that's what the law
specifies for "repeated" acts of abuse -- and multiple dunkings counted
as that. In recent years, to little organized protest, animal-rights
advocates have successfully lobbied for criminal statutes on animal abuse
to be made more
and more stringent.
August 2 -- Our
first month; new site improvements. Thanks
to the many repeat visitors who've brought our total pages-served to more
than five thousand in our first month. Two more new features debut
today, along with some new navigational and cosmetic odds-and-ends.
First, there's an easy-to-use form on the left side of the front page which
lets you recommend this site to a friend. Just enter your
name, your email and your friend's, press "send", and a message is on its
way. The form works not only for general recommending of the site
as a whole to people who might enjoy it, but also for calling your friends'
attention to a particular entry -- just use the added-comments box
to say, "Check out today's parrot story", or "I told you you couldn't make
me mow the lawn -- see July 26".
In addition, we've now put up a page with an explanation
of Overlawyered.com's format to help newcomers figure out more
quickly how to get the most out of the site, paired with some more technical
notes for those who want to cite us,
link
to us, or link to us with graphics.
Repeat visitors may also notice that the site now incorporates a pink-rectangle-with-black-letters
logo button which usually when pressed will return you to the top page.
Real devotees may also notice other differences in the "navigational bar"
to the left of the main text, which has been streamlined for some pages
and made more detailed for others.
July 31-August 1 -- Weekend
reading. Pixels to take to the beach or cottage:
* The Boston Globe's July 26 article (link now dead) on
how the practice of asking people to sign liability release forms is "creeping
into nearly every aspect of American life", even things like the modern
equivalent of an old-fashioned New England barn-raising. Reporter
Bruce Mohl quotes lawyers who'd like to ban many such liability disclaimers
or say that courts should just not enforce them (translation: how dare
people try to escape from the system we've made for them?).
* Jonathan Rauch's new National
Journal column (July 23) based on his interviews with a forensic
psychiatrist, a specialty in much demand these days thanks in part to all
the harassment and discrimination suits in which "your damages go way up
if you can show emotional distress, incapacitating trauma, or other psychological
injury". After hearing a series of case histories, Rauch concludes
that "a lot of workplace disputes that belong in the sandbox are winding
up in the courts".
* LawNewsNet's June 17 account of how the Utah law firm
of Snow, Nuffer, Engstrom & Drake went to the execution sale of a former
client -- the forced sale of his assets to satisfy creditors -- and bought
up his right to sue it for legal malpractice (a judge later struck
down the deal).
July 31-August 1 -- Personal
hell. How common are false charges of sexual abuse, and
how often do they succeed in ruining the lives of innocent
targets? Two powerful items from the July 26 New York Post
leave you wondering. An editorial
(alternate
URL) tells of New York state psychologist Mark Komlosi, charged
by a malicious co-worker with sexually abusing his mentally retarded patients.
The story eventually fell apart, but Komlosi went through a personal hell
in which the ruin of his career -- he wound up putting in time as a doorman
and a salesman -- was only the start. In an unrelated column, the
Post's
Steve Dunleavy casts fresh
doubt (alternate
URL) on the credibility of the accuser in 1998's famous "cyber-sex"
rape case, where defendant Oliver Jovanovic was
convicted and given 15 years to life; he's served a little more than
a year so far. (update Dec. 23: appeals
court overturns Jovanovic's conviction)
