| ARCHIVE -- AUG. 1999
(II) |
August 31 -- Death
by mainstreaming. Had safety been
the primary concern, Joshua Smurphat of Sunnyvale, Calif., 12 years old
and mentally retarded, would probably not have been allowed onto the Drop
Zone Stunt Tower ride from which he fell to his death August 22 at the
Great America amusement park in Santa Clara. Mechanical failure has
been ruled out, and ride designers say that once patrons have been strapped
in, it's physically impossible for them to fall out -- provided they obey
instructions to remain in their original posture. Even if Joshua's
harness was insecurely fastened, a possibility investigators are still
checking into, an ordinary 12-year-old would be apt to notice the problem,
but as Jeffrey Lewis, a director of the local United Cerebral Palsy organization,
cautions: "in many cases, a consequence of mental retardation is the lack
of danger awareness.''
However, both the federal Americans
with Disabilities Act (ADA) and California disabled-rights law prohibit
amusement parks from "discriminating" against persons with mental incapacities
by turning them away from rides, or attaching special preconditions to
their participation, so long as they meet otherwise applicable requirements
such as height and chronological age. "Certainly they couldn't say that
somebody who had a cognitive disability couldn't participate in a ride,''
Sacramento disabled-rights attorney Eric Gelber told the San Jose Mercury-News,
apparently well pleased with that result. "We take our obligation
to accommodate all of our guests, regardless of disability, very seriously,"
said a park spokesman, in what might serve as an epitaph for the unfortunate
young man. (Aug. 26; related follow-up, Aug. 28; links now
dead).
August 31 -- New
Overlawyered.com
page: Unsafe on any docket.
"Crashworthiness" cases have made big headlines this summer, with two California
juries voting awards of $5 billion against GM (Chevy Malibu) and $290 million
against Ford (Bronco) and the Massachusetts high court upholding a $19.2
million verdict against Chrysler for a Plymouth minivan accident that the
plaintiffs blamed on brake locking. We've accordingly devoted the
ninth
in our series of topical surveys to the area, assembling some historical
background and links about the Audi 5000 and its supposed penchant for
sudden acceleration, the 1993 episode in which Dateline NBC producers got
caught practicing what you might call sure-fire journalism, and similar
controversies, not neglecting the case that litigation advocates would
much prefer to talk about, that of the Ford Pinto.
August 31 -- The
"we sue Microsoft" business plan.
A Bridgeport, Connecticut jury on July 17 returned a verdict in favor of
Microsoft
in a private antitrust suit brought by a small company named Bristol Technologies.
Interviews afterward indicated that jurors had been angered by internal
Bristol emails and memos revealing the smaller company's not-exactly-reluctant
attitude toward litigation. A May 1998 message from a company director
to Bristol chief executive Keith Blackwell referred to the approaching
lawsuit as "the 'We sue Microsoft for money' business plan." Meanwhile,
"[a] memo from a Manhattan public relations firm hired by Bristol described
a $75,000-plus 'David v. Goliath Strategic Communications Game Plan' to
attack Microsoft in the press," reports Karen Donovan in the August 2 National
Law Journal. "Then came an e-mail from Keith's wife, Jean, days after
the suit was filed in August. Its subject: 'Extend the Story, Increase
the Pain.'" "The whole scenario was kind of disgusting," said juror
Robert LaBella of Stamford (followup -- Thomas Scheffey, "Microsoft,
Bristol and Money", Connecticut Law Tribune, Aug. 23). Update
Nov. 30, 2000: judge increases verdict
to $1 million, Bristol requests new trial.
August 30 -- Do
as we say (I). Latest employer
to face a big class action under the antediluvian Fair Labor Standards
Act for not paying overtime to some of its highly responsible employees
(lawyers, in this case): the U.S. Department of Justice. (San Jose Mercury-News,
Aug. 25; AP/Mpls. Star-Tribune, Aug. 26). Don't miss the Detroit
News
editorial (Aug. 28). Update Jul.
18, 2004: court rejects case.
August 30 -- Do
as we say (II): gun-suit hypocrisy in Detroit. The
Motor City's police chief confirmed last week that just before suing
private gun makers for allegedly not doing enough to curb distribution
of their wares, the city itself sold an astounding 13-plus tons of used
police weapons to a private dealer. That puts Detroit ahead of even
New
Orleans and Boston (see Aug. 25 entry, below), in the tonnage and perhaps
also the hypocrisy competition when it comes to weapons distribution.
Should the city be liable each time one of those surplus guns gets used
for a criminal or suicidal purpose? (Detroit Free Press, Aug.
25).
Since its filing, letters to the editor from local residents
have flayed Detroit's gun suit for "holding an innocent party responsible
for someone else's criminal activity" and have suggested that, if the city
is going to endorse that sort of logic, "victims of crime in the city of
Detroit should file suit against the city for its failure to protect those
in the city" (Free Press letters, Jan.
8, May 1).
More than one letter-writer has suggested, by way of trying to come up
with a reduction to absurdity, that the logical culmination would be to
hold Detroit's own hometown industry, the automakers, liable for the activities
of drunk drivers. But as July's Chevy Malibu verdict shows (see August
27, below, and July 10) that's exactly
what the trial lawyers are already doing with considerable success.
It's not easy to think up a reduction to absurdity of our litigation system
that isn't already well on its way to being implemented in all seriousness.
August 30 -- "Tort
reform spurs lawsuit filings". Alabama courthouses
work overtime as lawyers file suits in droves to beat the deadline for
the application of legislated limits to punitive damages and forum-shopping
(Huntsville
Times,
Aug. 24).
August 30 -- Taco
Bell not liable for Ganges purification pilgrimage. A
judge in Lancaster County, Nebraska has declined to order the Taco Bell
restaurant chain to pay for trips to India for Siva Rama Krishna Valluru
and his wife, Sailaja. Devout vegetarians as part of their practice
of Hinduism, the couple was dismayed to discover that a rice side dish
they had been eating contained meat. They had argued that swallowing flesh
constituted a sin the expiation of which required them to bathe in the
Ganges River as part of a purification ritual, but Judge Jean Lovell said
such expenses did not count as reasonably foreseeable (Lincoln, Neb. Journal-Star,
Aug. 27; AP/Bergen County, N.J. Record, Aug. 28).
August 30 -- "Scholar's
shift in thinking angers liberals". Harvard's
Laurence Tribe upsets colleagues by concluding that the Constitution's
Second Amendment may not, after all, be a meaningless inkblot. Instead
he "posits that it includes an individual right, 'admittedly of uncertain
scope,' to 'possess and use firearms
in the defense of themselves and their homes." Heresy! (Tony
Mauro, USA Today, Aug. 27).
August 28-29 -- Speech
police go after opinion articles, editorial cartoons. Columnist
Stephen Chapman writes that the faculty union at Daley College was recently
hauled before the city of Chicago's Commission on Human Relations, which
has the power to levy fines and issue injunctions. Its sin?
Publishing an article critical of affirmative action in its newsletter.
The college's Board of Trustees, which filed the complaint, accused the
author of the offending piece, Prof. James Bell, of jeopardizing "the rights
of students and staff at Daley to equal access" by "mak[ing] students uncomfortable
in an institution where comfort is essential for learning." In June,
after two years, the commission finally dismissed the complaint on the
grounds that Daley College was not a "public accommodation". Also
in June, however, Chapman reports, the Department of Human Rights in St.
Paul, Minn., filed a complaint against the local newspaper accusing it
of racial discrimination for having run an editorial cartoon on college
athletics that offended many local blacks. After a public outcry,
it backed off (St. Paul Pioneer Press, June 10; AP/Freedom Forum,
Jun.
23). Chapman quotes UCLA law professor Eugene Volokh warning that
such complaints are only too logical a consequence of today's "hostile-environment"
law, a topic on which Volokh maintains a highly
informative website. (column link now dead)
August 28-29 -- Weekend
reading. Pixels to take out on the canoe
or Airstream:
* What goes around comes around: the estate
of the famously litigious inventor Jerome Lemelson gets hit with a suit
from his former employer saying that it actually owns the rights to many
of his patents. Critics accused the late Mr. Lemelson of specializing
in "submarine" patents whose applications would lie dormant in the Patent
Office for years, then suddenly surface when other companies had made progress
on the technology in question. (Victoria Slind-Flor, National
Law Journal, August 24; see also lemelsonpatents.com,
a website put up by lawyers who've tangled with the Lemelson estate.)
* "Why, why, would the American Bar Association
honor a scandalous leader who has just been found in contempt of court,
and whose disbarment is being considered even now?" Or Webster Hubbell,
convicted of stealing from his clients? "What kind of advertisement
for the profession of law is that?...[Y]ou can't embarrass an honest profession.
Seduced by the glitz of high office and maybe its own partisan prejudices,
the bar got what it deserved" -- Paul Greenberg, Arkansas Democrat-Gazette
(full column). Meanwhile, Judge Richard Posner's An Affair of
State: The Investigation, Impeachment, and Trial of President Clinton
sounds like the book to read in the coming month, to judge from reviews
by Stuart Taylor Jr. (National Journal) and James Stewart (New York
Observer).
* Time for social conservatives to get off
their coercive, government-infatuated Culture War kick: "The problem with
cultural conservatism is that it despairs not of culture, but humanity.
Its votaries consider us all a bunch of suggestible imbeciles, and they
view capitalism as a scam...As it turns out, though, people are pretty
reasonable....We’re not in danger of 'an accelerating descent into barbarism
and the destruction, sooner or later, of free society itself.' ...Censorship
merely would bollix things up by inviting censors to abuse power and everyone
else to become dependent and lazy." -- columnist and Fox News host Tony
Snow (link now dead).
August 27 -- L.A.
judge cuts award against GM to $1.2 billion. From
the automaker's motion for a new trial, we finally learn what the other
driver's name was (Moreno), how drunk he was (".20 several hours later"),
and what happened after the plaintiff's lawyers succeeded in getting the
judge to exclude from the trial any mention of Moreno's intoxication or
the fact that he'd been convicted and imprisoned for felony drunk driving
over this crash ("Having moved to exclude it, plaintiffs told the jury,
falsely, that his guilt consisted of 'five seconds of bad judgment'," whereupon
the jury allocated to Moreno only 5 percent of the guilt for the injuries)
(GM statement)
(earlier Overlawyered.com commentary)(auto-safety
litigation generally).
Plaintiffs also successfully fought to exclude evidence
that the federal government's real-world highway statistics show the Malibu
among the safest cars of its time in crashes, and that testing had raised
safety concerns about the alternate placement of the gas tank sought by
the plaintiffs. Reuters now quotes GM as saying that 98 percent of
American cars in the 1970s had their gas tanks in the same position as
the Malibu's. ("Judge Tells GM To Pay Record $1.2 Bln Liability",
link now dead). The company also says (Wall Street Journal news
report today by Frederic Biddle, online subscribers only) that "there was
absolutely no difference in cost" between the two designs.
While Reuters (link now dead) fairly summarizes many of
the above facts, you're in trouble if your local paper relies on the Associated
Press. AP correspondent David Germain's dispatches make it hard to
figure out why GM thinks it has a case, merely depicting the automaker
as trying to "be let off the hook" (link now dead) and quoting plaintiff's
attorney Brian Panish as saying, of the gas tanks, that "[t]he only people
in the whole world who think they're safe are General Motors and their
lawyers" (link now dead), a temptingly checkable assertion left unchecked.
Incidentally, Yahoo features Overlawyered.com's July
10 commentary as a resource in its Full
Coverage feature on the case.
August 27 -- Best
little forum-shopping in Texas. Two more
stories illustrate why lawyers appreciate the Lone Star State for a kind
of shopping not found at Neiman-Marcus. Mark Ballard in the National
Law Journal relates how plaintiffs have brought a long succession of
high-stakes cases to sleepy Texarkana, Texas "for only one reason: Judge
David Folsom. The 52-year-old Clinton appointee is the only federal judge
in Texarkana. Thus, every suit filed here goes before him." Find
a local resident or institution to stand in as your named plaintiff, and
you're home free: Folsom says he can't recall ever granting a change of
venue, though they're often requested by defendants who wonder why they've
been dragged to rural northeast Texas when neither they nor the subject
matter of the litigation have any particular connection to that part of
the world. An old pal of Bill Clinton's from Arkansas days, Folsom
presided over the $17.3 billion settlement of Texas's Medicaid class action
against the tobacco industry. That case certainly pepped up the local
economy: the Texarkana Chamber of Commerce estimates that tobacco lawyers
and their staffs spent $6.1 million during the proceedings. (Aug. 26).
Meanwhile, lawyers have obtained a $30 million settlement
in a Mexican bus-crash case, much more than what such a case would have
brought if filed in Mexico, because they were able to find a Texas judge
willing to impose not only a Texas forum but also Texas law. (To
get some idea of the asymmetries involved, imagine a Mexican court applying
that country's law to a Texas accident.) AP quotes the plaintiff's
lawyer as openly boasting of having foiled the Mexican legal system's duly
considered policy of not handing out money as readily as ours does.
The presumption of those other countries, thinking they can apply their
law to accidents on their roads! (AP/Washington Post, Aug. 16; Texas
Lawyer, Aug. 23).
August 27 -- Company
to settle 36,000-plus Norplant suits. The Dallas
Morning News reports that American Home Products has agreed to pay
what could exceed $50 million to buy partial repose (some suits will remain)
from lawyers suing it over the silicone-implant contraceptive. The
per-claimant sums aren't very large ($1,500), but nuisance value multiplied
by 36,000 gets into substantial money. For more details, see our
August
11 commentary and today's lead editorial in the Wall Street Journal
(online to subscribers only). (Dallas Morning News, Aug. 26;
Yahoo/Reuters).
August 26 -- Playing
rough in Alabama. Last week a Mobile grand
jury indicted former Alabama Trial Lawyers Association president Garve
Ivey Jr., of Jasper, and a private investigator who has worked with Ivey,
Wes Chappell, on charges of bribery, witness tampering and criminal defamation.
The charges arise from an episode last year in which a former prostitute
named Melissa Myers stepped forward to accuse Republican lieutenant governor
candidate Steve
Windom of raping her. Windom was elected anyway, Myers's story
soon fell apart, and she began cooperating with authorities looking into
the question of whether she had been backed by others in making the allegations.
Windom had come under heavy fire from organized trial lawyers for having
taken a leading role in support of tort reform; in Alabama, as in other
Southern states, the lieutenant governor's position is a powerful one in
blocking or approving legislation. Ivey and Chappell deny the charges
and say they look forward to their day in court, and Ivey has sued Windom
personally as well: "We are filing our lawsuit in Walker County, my home,
not Mobile." ("Ivey refuses to testify before grand jury", AP/Daily
Mountain Eagle (Jasper, Al.), Oct. 21, 1998; John M. Sandlin, "Ivey
sues Windom, indictment reported in Mobile", Daily Mountain Eagle,
Aug. 17; AP/Washington Post, Aug. 19) (see update Sept.
1). Update: a jury in June 2000 acquitted Chappell, acquitted
Ivey of the felony bribery charge, and convicted Ivey of the two misdemeanor
counts of witness tampering and criminal defamation; appeal planned (see
Aug.
31, 2000). Further update: in July 2001 the Alabama Supreme
Court reversed these convictions and ordered Ivey acquitted of the charges
(see July 7, 2001).
August 26 -- Rolling
the dice. With Ralph Nader on the warpath
against the gambling industry, can the lawsuits be far behind? Wait
a minute -- here they are! David Rovella in the August 2 National
Law Journal reports that class action
lawyers in Alabama and Wisconsin have filed suit against credit card
companies for allowing their customers to run up debts at offshore Internet
casinos. David T. Maple of Birmingham, Ala. lost $49.95 at one such
game site but stands to recover a lot more than that as "name plaintiff",
which might mean he is off to a profitable betting career after all.
Lawyers say they are hoping to recover billions of dollars in refunds,
interest "and even damages" (full
story). In a policy analysis for the Cato Institute, Chapman
University School of Law assistant professor Tom W. Bell calls Internet
gambling "Popular,
Inexorable, and (Eventually) Legal".
August 26 -- New
feature debuts on Overlawyered.com site. Today
marks the launch of our fledgling library
of online articles, originally published elsewhere and now reprinted
by permission of their authors, discussing some of the problems of the
U.S. legal system. The opening line-up includes 28 articles by Michael
Fumento, Peter Huber, Jonathan Rauch and Overlawyered.com editor
Walter Olson on topics ranging from employment law to medical malpractice
litigation, from toxic-tort scares to free speech. We expect to add
more authors and articles in the weeks ahead.
August 25 -- Gun-suit
hypocrisy, Boston style. Last week officials
admitted that they failed to follow their own procedures when they disposed
of surplus police guns with no strings attached, which leaves the city
resembling a Rum-denouncing cleric caught bootlegging on the side, given
that it's suing gun makers for not making
an effort to control what happened after guns left their hands (see July
14). "Somebody dropped the ball," acknowledged Police Commissioner
Paul Evans. Why not just end the embarrassment by dropping the suit?
(Boston Globe, Aug. 17; link now dead)
August 25 -- Calif.
state bar improperly spent dues on politicking. The
Pacific
Legal Foundation had brought suit on behalf of 40 members of the bar
in the Golden State. In the 1990 case of Keller v. State
Bar, the U.S. Supreme Court unanimously ruled that state bars with
compulsory membership must offer a refund to members of moneys spent on
politicking to which they object. The California bar proceeded to
announce that of the $450.00 dues it charged in 1989, a bare $3.00 was
spent on ideological and political activities, a figure it arrived at by
designating much of its Washington and Sacramento legislative effort as
merely one of "advising" lawmakers which bills to pass. We don't
think so, rules Sacramento County superior court judge Morrison England
Jr. after eight years of litigation (AP/Freedom Forum; Aug. 20).
August 25 -- Lawyers
grabbing too much of Swiss bank settlement, charge Holocaust survivors.
Yes,
it's one of the sadder headlines of 1999, and no, it's not one of the more
surprising to many who've followed the issue. "Gizella Weisshaus,
one of the first to sue the banks, said she no longer wanted to be associated
with the lawsuit because it would leave too little money for survivors."
(AP: Washington Post, CNN (links now dead)).
August 25 -- "Employee
lawsuits increasing". Survey of 353 companies
by Society for Human Resource Management and law firm of Jackson Lewis
finds slightly more than half have faced employment-related
lawsuits, with nine of ten suits coming from former employees. "Another
37 percent of the companies responding to the survey were sued by a current
employee, while 8 percent were sued by unsuccessful candidates for employment."
Partner George Wilkins of Cincinnati's Dinsmore & Shohl says labor
and employment is the fastest growing area at his firm. (John Eckberg,
Cincinnati
Enquirer,
August 22; SHRM June 27 press
release)
August 24 -- The
dream verdict. On July 12, three days after
a Los Angeles jury voted $5 billion against GM in the
Malibu case, a jury in Ceres, Ca. voted $290 million against Ford in
a case where several members of Juan Romo’s family had been killed in a
rollover accident in their Ford Bronco. Ford’s motion for a new trial,
filed last week, sheds light on how such
cases are tried in today's American courtroom.
Plaintiff’s counsel had railed against the “giant,” “wealthy”
Ford with its “lawyers back east in Dearborn.” (“I talked about this case
was about...corporate greed and arrogance...It’s also about this.
It’s about Mrs. Romo’s purse....She didn’t have furniture for crying out
loud, and she’s giving money to the church and she’s putting it [in her
purse] to provide for the education of her children.” Damages?
“You’ve got to say a number that gets on the front page of every newspaper
in the country.”
How to deal with the inconvenient circumstance that the
Bronco design more than exceeded the standards set by the National Highway
Traffic Safety Administration? Keep hammering away at the idea
that federal standard-setting (presumably in contrast to jury persuasion)
is a “political” process (“that political report called the Federal Register”;
“NHTSA has...political appointees”; “You got a reading from a Federal Register
as it goes out to the politicians.”)
California law allows affidavits to be taken from jurors
after a verdict. According to Ford’s motion, these affidavits revealed
that one of the jurors acknowledged she had prejudged the case and told
fellow jurors they did not have to follow legal instructions because the
case allowed them to “save the babies”. Of one attorney, she said
he “really was trying to do something good, and that what he said should
be considered as evidence.” And, several jurors testified, the same
juror told them at great length about a gruesomely detailed dream she’d
had -- which she described, not without mystical overtones, as an “omen”
-- in which a Bronco repeatedly rolled over and killed all the jurors’
children, while the company's line-up of attorneys and witnesses -- armed
with guns, no less -- “stood by taunting the jurors by chanting ‘Where’s
the proof, where’s the proof?'”
The juror affidavits also suggested that the panel was
strongly influenced by crash exposés that had aired on “60 Minutes”
and similar programs, attacking other Ford models that trial lawyers were
suing over, which a second juror saw as proving that Ford had acted in
bad faith in such cases. One of these shows, watched by more than
one juror, was aired by CBS on May 19, only weeks before the verdict, and
included material prejudicial to Ford that the court had excluded from
evidence in the Romo case. The apparent influence of the TV coverage
helps explain why trial lawyers have gone to such
extraordinary lengths over the years, behind the scenes, to shape the
coverage on such shows.
After the trial, Ford says, while it was in the process
of interviewing jurors to gather affidavits in connection with this new
trial motion, plaintiff’s lawyer Larry Drivon was thoughtful enough to
send the jurors a free gift, consisting of his own book inveighing against
big business ("The
Civil War on Consumer Rights"), which happened to feature a whole chapter
devoted to attacking none other than the Ford Motor Company. Included
was a note and personal inscription to the jurors: “for all us who care.”
Update
Aug. 27, 2002: appeals court reinstates
verdict, Ford seeks review by California high court. More
developments; further update Nov.
26, 2003 (appeals court reduces verdict in light of U.S. Supreme Court
guidance).
August 24 -- Beyond
the hired-gun syndrome. Good op-ed in Sunday's
(8/22) Washington Post by David L. Faigman of Hastings College of
the Law discussing the Court Appointed Scientific Experts project of the
American Association for the Advancement of Science (AAAS). Faigman's
book "Legal Alchemy: The Use and Misuse of Science in the Law" will be
published in October by W.H. Freeman & Co.
August 23 -- Fertilizer
manufacturers not liable for World Trade Center bombing. The
Third Circuit U.S. Court of Appeals has upheld the dismissal of a suit
by the Port Authority of New York and New Jersey, which had demanded that
manufacturers be made to pay damages for the 1993 terrorist bombing of
the twin Manhattan towers on the grounds that the misuse of their wares
to make fertilizer-and-fuel-oil bombs was "objectively foreseeable". The
appeals court found the lower court had correctly ruled that the manufacturers'
conduct could never be the "proximate cause" of the bombing: "The terrorists'
actions were superseding and intervening events breaking the chain of causation,"
writes Judge Jane Roth. If applied consistently, such logic could
be helpful to other manufacturers
sued over criminal misuse of their products, such as gun
makers. Also rejected was a theory that the fertilizer companies
were negligent for not having instituted "know-your-customer" controls
on buyers of their product -- again, an issue that finds its parallel in
the gun litigation. (Legal Intelligencer, Aug. 19) A press
communiqué (link now dead) from the clearly bewildered government
of Norway describes how two of that country's leading industrial companies
became defendants in the World Trade Center litigation, referring to "the
Americans' so-called product liability law".
August 23 -- You
may already not be a winner. A Canadian
court has turned away prisoner Allen Crawshaw's lawsuit asking $10,000
of Corrections Canada for failing to mail his entry last year to the Reader's
Digest sweepstakes, which had a first prize of $1.4 million. Prison
officials conceded they should have mailed the entry but denied that the
loss of a chance of winning should entitle him to damages: "Did you ever
see the odds of those?" said spokesman Dennis Finlay. Crawshaw, a
former shop steward for the United Food and Commercial Workers at a British
Columbia food plant, was convicted in 1994 of killing his boss after being
angered by a one-day suspension over heated comments he'd made criticizing
management; Crawshaw was "known [locally] as a peace activist". (National
Post, Aug. 11)
August 23 -- Political
Site of the Day. We're pleased to announce
that Overlawyered.com is today's Political
Site of the Day, an award service that has been picking 
daily
sites for more than four years, practically as long as there's been an
Internet. A stroll through PSoD's library
of past sites is a good way to appreciate the spectacular diversity
of the Net: within the space of two weeks we ran into the home sites of
the Serbian/Yugoslavian royal family,
PostalWatch
(a watchdog group on behalf of those regulated by the Postal Service),
How
To Win a High School Election ("It doesn't matter whether you're popular
or not..."), and Libertarian
Rock, which will send you free stickers to protest curfew laws.
August 23 -- "Beating
up on 'deadbeat dads'." "Those who decry
judicial tyranny and family destruction should pay more attention to family
courts, for they are the arm of the state that routinely reaches farthest
into the private lives of individuals and families," notes Howard University
political scientist Stephen Baskerville in an American Spectator
article sharply correcting the usual let's-lynch-'em view of "deadbeat
dads". The night after Bobby Sherrill came home from spending five months
as an Iraqi hostage, the Washington Times reported, the sheriff
was there to arrest him for not paying child support during his captivity.
A Texas janitor wrongfully convicted of murder and then exonerated after
ten years on death row was presented on release with a $50,000 bill for
child support he didn't pay while in prison.
Officials push through ever-more-punitive regulations
against delinquent pops, then hop over to for-profit private collection
firms, hired by their former agencies, that grow fat on the resulting business.
It's hard to go along with Baskerville in dubbing the deadbeat-dads problem
a mere "myth", but hard not to join him in worrying about "mass incarcerations
without trial, charge, or counsel; an apparat that has systematized the
invasion of private homes and the confiscation of children to a bureaucratic
routine; [and] political leaders [who use] their public office as a platform
to vilify private citizens who have been convicted of nothing and who have
no opportunity to reply" (full
story).
August 21-22 -- The
Marie Antoinette school of public relations. The
June issue of George featured a lavish photo spread ("Puff Daddies")
of six lawyers who "have raked in more than $5 billion for their firms
from tobacco litigation". The
backdrops weren't the usual stuffy law libraries, either. They included
the racing boat, conspicuously labeled "Gunsmoke", of Pascagoula's Richard
Scruggs, brother-in-law of Senate majority leader Trent Lott (more than
$1 billion in fees for representing Mississippi and other states); the
twenty-horse equestrian estate of Charleston's Joseph Rice (somewhere between
$1 billion and $10 billion); the private putting green on the Pensacola
estate of Fred Levin ($325 million); a foundation endowed by politically
ambitious Michael Ciresi of Minnesota ($440 million; "some of the fees
are
excessive", he cheerfully agrees); and the opulent bathtub where South
Florida's Robert Montgomery ($678 million), posed, fully clothed, under
what the Palm Beach Post called "English artist David Jagger's painting
of a naked woman". (Montgomery describes as "outrageous" Florida's
move to accept an $11.3 billion settlement without forking over a full
one-quarter of it to lawyers as agreed). An ostensibly less material
note was struck by Seattle's Steve Berman (roughly $2 billion), who previously
made it big filing shareholder class actions, and who says, "I got the
notion in the '60s that you can protest by growing your hair long or you
can get trained in the methods of the establishment and use their own tools
to beat them. There's nothing better than beating them at their own
game."
Addressing an Americans for Tax Reform audience earlier
this summer, Wall Street Journal editorialist John Fund said he
marveled at the willingness of the legal tycoons to rub their critics'
noses in their taxpayer-leveraged success by cooperating in such displays.
"Even the robber barons in the Nineteenth Century knew better than to do
it that way. Is it that they don't have anyone giving them p.r. advice?
Or do they just think at this point they're invulnerable?"
August 21-22 -- Weekend
reading. Pixels to take to the cabin or
island:
* Next on the identity-politics agenda: "Partly
due to the flurry of judicial and legislative activity pursuant to the
Americans
With Disabilities Act of 1990, disability studies, once an arcane field
of literary theory, has begun to attract attention from both the media
and the academy," reports Norah Vincent in the August 18 Salon.
Brown University professor Carol Poore asserts that "disability is actually
preferable to ability in that able-bodiedness 'is the precondition for
being a tool of the ruling class.'" Some in the disabilities movement "maintain
that, even if they were presented with a cure for their disabilities, they
wouldn't take it" (full
story).
* Overlawyered.com's editor devotes his
latest Reason column to the legal background of the Supreme Court's
Davis
v. Monroe decision in May, the one that allowed schools and universities
to be sued for not remedying "student-on-student" harassment. No
federal law in fact creates a right to sue over sexual harassment in education;
it's an "implied private right of action", which means basically that the
courts get to make it up as they go along. ("Title
IX's Invisible Ink", August/September).
* From the north comes word that the Canadian
Broadcasting Standards Council has declined to take action against
Global Television for its July 1998 broadcast of a 45-year-old Bugs Bunny
cartoon. A feminist complainant had hauled Global before the tribunal
over an episode of the "Bugs Bunny and Tweety" show, alleging that the
wascally wabbit had uttered remarks demeaning to women (National Post,
Fox News/Reuters, Boston Globe (links now dead))
August 20 -- The
long march through the courtrooms. From
Counterpunch.org,
the webzine of left-wingers Alexander Cockburn and Jeffrey St. Clair:
"Hardly had she [Hillary Rodham] raised her foot to step over the threshold
of radicalism than she turned back. She declined to go with the SNCC [Student
Non-Violent Coordinating Committee], turned down an offer to work with
Saul Alinsky as a community organizer in Chicago. Anderson quotes
her political science prof at Wellesley, Alan Schecter, as saying that
by the late 1960s his pupil had decided that the best radical strategy
was to '"use the legal system" as an agent of change.' She wasn't
alone in that calculation. The long march of the left through the courtrooms
was under way: the world would become a better place, courtesy of courtroom
briefs, complaints and class action suits.
"And so what we have seen, across the last three decades,
is the left vanishing into the quicksands of regulation. All society's
problems could be fixed by a statute, a rule, a waiver, a program.
Much of the antiwar left vanished into the consumer movement, the environmental
movement and legal fixitry. The mass movement died and litigation
-- often successful -- flourished amid the ruins" ("The First Lady Syndrome",
August 11 -- full
story)
August 20 -- "Three
insurers sued for $100 million". $300 million,
actually, since a Prince George's County, Maryland court is being asked
to mulct Allstate, GEICO and State Farm nine digits' worth apiece for the
offense of applying managed-care-style guidelines to limit policyholders'
personal medical claims after auto mishaps. This AP story commits
a few of the usual journalistic sins: 1) it signals no awareness that the
dollar demands in such cases can be arbitrarily picked for shock/news value,
our legal system putting no price tag on exaggeration; 2) it ignores the
probable role of the lawyers as parties-in-interest (though it does report
that many of the individual policyholders' claims are for less than $100);
3) it finesses the purely circular process by which anyone deems such filings
newsworthy (the seven named customers would normally have had trouble getting
even back-page local coverage, but instead scored big national headlines.
Why? Because their lawyers asserted a right to speak for a large
class of policyholders nationwide. Why would a court accord these
particular lawyers that right? Well, they did get all this national
publicity...) Best detail: "All of the plaintiffs have maintained
their coverage with the companies despite the disputes." Mad enough
to sue, in other words, but not mad enough to switch companies (Yahoo/AP;
link now dead).
August 20 -- New
Overlawyered.com
pages: tobacco tycoons, litigation
in the workplace. Two more newsworthy topics
get their own subpages, bringing the number of topical pages to eight.
Seven weeks old, this site has now served more than 15,000 pages, with
our traffic rate nearly doubling this month from last. Thanks!
August 19 -- Plus
extra damages for having argued with us. In
yesterday's Washington Post, David Ignatius calls global
warming a potential "plaintiff's lawyer's dream", quoting former deputy
energy secretary Lynn Coleman as saying that if doomsayers' predictions
prove accurate, lawyers could file trillions of dollars in claims against
utilities, oil companies and others for weather-related effects.
Significantly, Ignatius suggests ("the best analogy may be tobacco") that
future juries will be angered by some companies' current boldness in debating
the issue by way of counter-studies and newspaper ads. Apparently
one "lesson of tobacco" is that it's
henceforth going to count as an independently punishable offense to defend
one's business in public controversy (link now dead).
August 19 -- Click
here to sue! Seattle-based Bendich,
Stobaugh and Strong, P.C. specializes in employee class
actions arguing that temp, freelance and independent-contractor employees
were really "misclassified" and deserve retroactive raises and benefits,
no matter what the two sides may have thought they were bargaining for
at the time. Taking advantage of the Web, the firm makes it
really easy to join its suits against Microsoft
(see also Jan. 11, 2000 commentary),
Arco,
King
County (Seattle) and Los Angeles
County.
August 19 -- NAACP's
"ludicrous" anti-gun suit. Ninety percent
of murders of blacks are committed by other blacks, David Horowitz observes,
but now litigation offers a handy way to blame the toll on distant white-owned
gunmakers, advancing "a fantasy in which African-Americans are no longer
responsible for anything negative they do, even to themselves". (Salon,
August 16 -- full
column).
August 19 -- Another
scare starts to fizzle. "For three years
now, organizations ranging from environmental
groups to Consumer Reports have been proclaiming the existence of
a deadly wave of endocrine disrupters that cause cancer, infertility, and
personality abnormalities," writes Gregg Easterbrook in the August 30 New
Republic. Now the National Academy of Sciences has studied the
issue of environmental residues of these synthetic
hormones and found much less than meets the eye in the scare reports.
(full
article). Score another one for skeptics Mike
Fumento and Ron
Bailey, as well as for the New York Times's much-hatcheted Gina
Kolata, whose refusal to hype the endocrine-disrupter scare was a chief
count in the campaign against her typified by Mark
Dowie's article in the July 6, 1998 Nation.
August 18 -- Undislodgeable
educators. Tenure laws make it hard
in many states to remove even a badly underperforming teacher from
the classroom, but hopes for reform rose when Bob Chase became president
of the National Education Association with an agenda that included "peer
review" methods like those pioneered by NEA's
Columbus, Ohio affiliate. "The goal of peer review is to help
people succeed," Chase has said. "But it could also speed up the process
of dismissing a teacher who is not successful....We know that it sometimes
takes five or six years to get rid of a teacher, and that is too long."
But can peer review work if it's just an overlay onto,
rather than a substitute for, the laggard teacher's right to challenge
a dismissal by every current legal means? That question is posed
by the case of Ivy Featherstone, a 25-year-veteran teacher in the Columbus
schools whom administrators often observed reading the paper in class with
his feet up on the desk while students snoozed. Two years of intensively
applied peer review, followed by 16 days of hearings, led to the conclusion
that Featherstone should be given a "negative release", and he was suspended
without pay. Duration of the process up to that point: three years,
and it turned out things were just getting started. Featherstone
was soon off to federal court to charge that the dismissal was racially
discriminatory, and it's taken four more years for a judge to dismiss that
case -- not on the merits, but on the grounds that Featherstone failed
to take the procedural steps needed to preserve his rights to sue.
(If he had, presumably, the case might still be in progress). The
case gets written up in this
week's communiqué (week of August 16) from Mike Antonucci's
invaluable Education
Intelligence Agency; subscriptions
are free, and highly recommended to anyone with an interest in how schools
work.
August 18 -- Ohio
case fallout. In a blistering editorial
(no longer online), the Columbus Dispatch calls the state high court's
striking down of tort reform (see item for August 17, below) "an act of
arrogance and an affront to the doctrine of separation of powers".
Meanwhile, furious business groups vow to make the next set of judicial
elections a referendum on the court's activism. Though with a nominal
Republican majority, "the current seven-member tribunal has gained a reputation
as a 'plaintiffs' court.' Two Republican justices, Andrew Douglas and Paul
E. Pfeifer, have become frequent swing voters with decisions endearing
them to labor unions and trial lawyers." (Joe Hallett, Columbus Dispatch,
Aug. 17).
August 18 -- "Dieters
still want fen-phen". The hazards of the
drug are frightening; so are those of obesity, and Cincinnati Enquirer
reporter Susan Vela found many local residents wishing the system still
permitted them a choice. "It calmed the monster in my body," said
one woman who was able to get down to 136 on fen-phen but has gone up to
210 without it. "Who do I sue to get it back on the market? I'm suffering
without it." (Aug. 16; full
story). An August 14 Washington Post editorial calls
the recent Texas $23 million award against the drug's manufacturer "a terrible
signal, almost guaranteed to bring thousands more plaintiffs to court on
flimsy evidence".
August 17 -- Ohio
high court says forget tort reform; should unionists be cheering? By
a one-vote margin, the Ohio Supreme Court basically notifies the state's
lawmakers that it won't tolerate any attempts by them to say how the state's
liability law should operate. "Ohio legislators might as well shut up shop
and go home," said Linda Woggon of the Ohio Chamber of Commerce.
The decision is the 90th in which a state court has invalidated efforts
to curb litigation, according to sources at the
American Tort Reform Association, which keeps the dismal count. (Columbus
Dispatch
(link
now dead), Cleveland
Plain
Dealer, Cincinnati
Enquirer
coverage). Overlawyered.com intended to give the Ohio constitution
a look-through to see whether it in fact contained a provision prohibiting
legislatures from legislating, but found that as of this morning the state's
engine for searching
the Ohio constitution was broken and returning error
messages, which seemed kind of appropriate, actually.
The statute had been challenged not only by the Ohio Academy
of Trial Lawyers (which argued its members would lose business) but also
by the state AFL-CIO, whose president William A. Burga, quoted in the Columbus
Dispatch,
said "anyone who has been harmed or injured" deserves "their day in court
and...a fair decision from a jury". That's kind of ironic, since
unions themselves long ago procured for themselves a series of tort reforms
far more favorable than anything being asked for by the business community,
insulating them from the risk of unbounded jury awards at the hands of
complainants who've been (say) roughed up by union pickets. In California,
for example, state law already pointedly says that citizens' "right to
be free from any violence, or intimidation by threat of violence"
does
not apply in a context of "otherwise lawful labor picketing" (gee,
thanks, guys!) and AB
1268 (Kuehl) now moving toward enactment in the labor/trial-lawyer-friendly
state legislature, would curtail unions' civil liability yet further, curbing
the application of exemplary (punitive) damages and vicarious liability
even if acts of violence are committed by unionists for the organization's
benefit.
So here's the net effect: it's just dandy and highly constitutional
for legislators to immunize unions from the danger of adverse jury verdicts
for acts of deliberate violence, but it suddenly becomes an unconstitutional
invasion of jury prerogatives when they try to set any limits at all on
the award of "noneconomic" damages, for categories like pain and suffering
and emotional distress, in cases where businesses are charged with responsibility
for accidental injuries. What do you think Mr. Burga of the
Ohio AFL-CIO would say if someone "harmed or injured" crossing a picket
line in Akron or Youngstown decided to claim a constitutional right to
"their day in court and...a fair decision from a jury"? Would he
still insist that legislatures have no constitutional power to limit liability?
August 17 -- New
Overlawyered.com
page: "The case for loser-pays". Despite
continuing strong Main Street interest in the loser-pays idea, there's
been precious little in the way of Web resources on it, so we've made it
the subject of the
sixth and latest
in our series of topical links pages. It's the most basic, the most
indispensable, and the most overdue of all legal reforms; if we can bring
it even a little closer to enactment, our time will have been well spent.
August 17 -- Correction.
In
the August 6 item, "Courts actually begin
to define harassment", summarizing a recent Chicago
Tribune
report on the ripple effects of last year's Oncale decision, we
erroneously reported that the Tribune article did not mention the
Oncale
Court's unanimity. In fact, it did mention it. Our apologies.
August 16 -- Think
I'm too litigious? I'll sue! (I). In
Bakersfield, Calif., the developer of the Fairway Oaks community won't
sell new houses to attorneys because it considers them too likely to get
into disputes. Attorney Timothy Liebaert said he was "shocked" and
"very mad" to be turned away on the basis of such a generalization, so
-- how better to disprove it? -- he's suing them. However, occupation
is not among the list of categories covered by California housing discrimination
laws, and a Kern County judge proceeded to rule that there are legitimate
business reasons for a developer to prefer non-lawyer customers.
Fairway's sponsors had previously sold to two attorneys among 500 home
buyers and had gotten into a protracted dispute with one, though it had
not gone to litigation. Liebaert has filed an appeal and plans to
keep the case going on new theories, such as a claim that a developer,
if it wants to pursue a policy of not selling to lawyers, is legally obliged
to announce that policy in its ads. (Reuters/Fox News; Los
Angeles Times, July 25)
In 1986 it was reported that two medical groups practicing
obstetrics and gynecology in Brunswick, Ga., had refused to accept as patients
attorney Amanda Williams, who had filed what the doctors considered meritless
malpractice suits against some of their number, or her law clerk Sheryl
Jolly. Williams said she found the policy "offensive" but said "they
no doubt take it personally when I file a suit on behalf of a client".
August 16 -- Think
I'm too litigious? I'll sue! (II). Remind
us to stay on the good side of attorney Michael Bidart of Claremont, Calif.'s
Shernoff, Bidart, Darras & Arkin, who garnered big headlines in January
when he convinced a San Bernardino County jury to vote $120.5 million against
Aetna U.S. Healthcare for delaying approval of a bone-marrow transplant
that he argued might have saved the life of patient David Goodrich.
Aetna CEO Richard Huber, angered by the verdict, blamed it in part on the
efforts of "a skillful ambulance-chasing lawyer". And Bidart responded
to this dastardly insult by...suing Huber last month for defamation in
Los Angeles Superior Court. Legal correspondent Reynolds Holding
comments in the San Francisco Chronicle (August
8) that Bidart is "apparently more adept at dishing publicity than
taking it".
August 16 -- To
restore individual responsibility, bring back contract principles. In
this recent Policy Analysis from the Cato Institute, Professor Michael
Krauss of George Mason U. School of Law says one major reason liability
law has fallen into disrepute is that courts have supplanted contract with
tort principles; it doesn't matter whether you foresaw a risk and agreed
to bear it, they'll let you sue anyway. Formerly, the law sought
to secure parties' rights to shape their own relationships, the role of
tort law being to secure persons against unconsensual invasion. Now
reliable law has given way to "a general social insurance scheme", particularly
in areas like product liability and medical malpractice, with lamentable
consequences: "our rights have been given increasingly less respect by
government". (Full
paper)
