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| ARCHIVE -- DEC. 1999
(II) |
December 31, 1999-January
2, 2000 -- New safety rule likely to increase death toll.
"The National Transportation Safety Board -- acting out the Clinton Administration’s
desire to inject children into every political issue -- declared 1999 the
'Year of Child Passenger Safety'". The Federal Aviation Administration
accordingly reversed its longstanding policy and decided to prohibit children
under the age of two from riding in their parents' laps (a practice that
saved parents the price of a ticket). Instead they'll have to be
placed in separate child restraint seats. But the cost of the additional
tickets will induce many families to drive rather than fly,
and an earlier FAA study found that "while mandatory child restraints might
prevent five fatalities over the next 10 years, an estimated 82 children
and adults would perish on the nation’s roads as families sought cheaper
transportation alternatives." ("The cost of toddler restraints" (editorial),
Detroit News, Dec. 23; Jacob Sullum, "Little Restraint" (syndicated
column), Reason Online, Dec.
22)
December 31, 1999-January
2, 2000 -- NYC subtenants from hell. Susan Teeman's
gruesome ordeal in the New York City housing courts began when she gave
her subtenants Stuart and Susan Levy one month's notice that she needed
to reclaim from them her $550-a-month, one-bedroom apartment on E. 76th
St. That was back in 1985. It took eleven years of litigation
to get them out, followed by a few more years' worth of tag-on court proceedings,
during which time they engaged in tactics that judges labeled "outrageous,"
"abject nonsense," "vexatious" and "reprehensible". Don't read this
one unless you want to get upset (Dareh Gregorian and Erika Martinez, "Subtenants
from Hell Gave Her a New Lease on Strife", New York Post, Dec. 30)
December 31, 1999-January
2, 2000 -- More assertions of link liability. In
a suit filed in California Superior Court in Santa Clara County, lawyers
for the DVD Copy Control Association are seeking a restraining order against
some 72 programmers and websites,
attempting to block dissemination of software that allows consumers to
de-encrypt the digital movie format for purposes of copying. The
suit targets not only websites which make the software available on their
servers for download, but also popular discussion sites such as Slashdot
and Usenet archive Deja which have allowed
the posting of web addresses where the software may be found. "If
linking to data is ever ruled a liable offense, then the Web is effectively
worthless. I think the courts will recognize this," said Rob Malda, one
of the founders of Slashdot. On Wednesday Judge William J. Elfving
denied the request for a temporary restraining order; a hearing on the
request for a permanent order is scheduled for January 14. (Slashdot
reporting and discussion; Chris Oakes, "Case Hinges on Reverse Hack",
Wired
News, Dec.
28 and "DVD Round One Goes To Hackers", Dec.
29; Mike Musgrove, "Suit Targets DVD-Copying Software", Washington
Post,
Dec. 29, link now dead).
December 31, 1999-January
2, 2000 -- "Love contracts" spreading to U.K. An
unnamed British company is following the lead of some U.S. firms by drawing
up "love contracts" for employees to sign if they become romantically involved
with co-workers, to protect the company from later charges of sexual
harassment (see Dec. 3 commentary).
The BBC says there's a question "whether such contracts will rile employees
by killing off what many see as a harmless facet of office life". ("Beware
of the 'love contract'", BBC News, Dec.
30).
December 31, 1999-January
2, 2000 -- Free expression, with truth in advertising thrown in?
A federal judge ruled on Tuesday that Roseville, Minn. personal-injury
attorney Todd Young has a constitutional right to fly the pirate flag,
the Jolly Roger, outside his office to advertise
his practice. Town officials had objected to the flag as a banner prohibited
by its advertising-sign ordinance. Municipal attorney Joel Jamnik
said the town was not planning an appeal but would instead attempt to reword
its ordinance more carefully to remedy what the judge saw as impermissible
vagueness. "These are essential rights," said Young. (John
Welsh, "Avast, ye swabs! Jolly Roger to fly freely in Roseville", St. Paul
Pioneer
Press, Dec. 29)
December 29-30 --
Class action toy story. Toys-R-Us,
Mattel,
Hasbro, and other toy companies
agreed this year to settle antitrust charges brought by private class
action lawyers and the attorneys general of 44 states, which accused
them of having conspired to allow only a limited selection from the manufacturers'
toy lines to be sold in warehouse discount stores (for example, toys destined
for those stores were often grouped in "combination packs" for customers
willing to buy several at a time). The terms of the settlement included
$3.25 million for the private lawyers, $1.8 million to be recycled into
the budgets of the state AGs, $335,000 for the National
Association of Attorneys General, and $12.8 million to be distributed
among the states for children's programs. In addition, the companies
agreed to furnish toys from their inventory with a nominal value of tens
of millions of dollars to be distributed to poor kids at Christmas, an
agreement that gave the state attorneys general the perfect occasion for
issuing self-congratulatory press releases (samples: Calif. (link now dead),
N.Y.,
Texas,
Tenn.,
Idaho,
Iowa).
"At Christmastime in 1998, 1999 and 2000," notes Forbes's Dan Seligman,
"the attorney general of just about every state gets to play Santa Claus,
and has a chance to dwell publicly on the wonderfulness of attorneys general
who bring toys to the kids." Meanwhile, actual customers who bought
toys during the period get $0.00 -- it would be impractical to identify
them, explains the settlement
notice -- and some even suspect those customers will foot the bill
in the end as companies pass on the cost of such litigation in higher prices.
(Dan Seligman, "Mutant Ninja Lawsuits", Forbes, Oct.
18).
December 29-30 --
Down repressed-memory lane I: costly fender-bender.
A jury in Milford, Connecticut has ordered George B. Daniels to
pay Andrea Karlsen more than a half million dollars over a low-speed auto
collision that, Karlsen's attorney argued, caused her post-traumatic stress
disorder by bringing back memories of childhood abuse. Daniels, himself
a sitting judge in New York who has been nominated to the federal bench
by President Clinton, acknowledged that the mishap on the Boston Post Road
in Orange, Ct. on Dec. 29, 1991 had been his fault. "But he testified
that the accident was so minor that neither an ambulance nor a tow truck
was needed afterward". Plaintiff's attorney Loren Costantini, however,
sought more than $6 million in damages, arguing that the incident had "triggered
post-traumatic stress disorder in Karlsen and memories of childhood abuses
so severe that she became ill -- both mentally and physically -- and unable
to work as a flight attendant." Ms. Karlsen, a former model and Playboy
bunny, became distraught after the verdict, "screaming and crying in disappointment
that she was not awarded more money", and yelling at defense attorney John
Costa, "You're a murderer. He tried to kill me." (Heather O'Neill,
"$523k awarded for fender bender", Connecticut Post, Nov.
6; "Judge must pay accident victim $500,000", AP/Norwalk, Ct. Hour,
Nov. 7 (not online); Thomas Scheffey, "All in her head", Connecticut
Law Tribune, Nov. 16).
December 29-30 --
Down repressed-memory lane II: distracted when she signed.
A Canadian judge has granted a woman's
request to nullify a 1990 separation agreement
with her ex-husband which she had signed under mental duress; the
duress was occasioned, she said, by reemergent memories of childhood sexual
abuse. Accepting the woman's claim of incapacitation,
Mr. Justice Donald Taliano found that she was "so overcome by mental illness
that she was incapable of dealing with even the simplest of life's demands,
let alone the complexities of a separation agreement" and ordered her ex-husband
to repay her $180,000 (Canadian), although his earning capacity
is limited since he is retired and in the early stages of Alzheimer's disease.
(Donovan Vincent, "Man ordered by court to repay ex-wife $180,000",
Toronto Star, Sept. 7, not online)
December 29-30 --
Just like the Bourbons. Ah, those editorial-writers
at the New York Times, who for so long have learned nothing and
forgotten nothing. "It has become fashionable to depict the proliferation
of lawyers and lawsuits as something negative -- both symptom and cause
of a self-indulgent 'culture of rights'", rumbles the paper's Dec. 24 editorial.
"This fashion may pass... At the moment, though, Congress and the current
Supreme Court seem determined to exploit this misconception in mischievous
ways..." There in a nutshell you have the Times's editorial
philosophy on the litigation issue: sure, Americans may be dragging each
other through the misery of courtroom battles in "proliferating" ways,
but it's a "misconception" to view that as "something negative".
("The Expanding Reach of Civil Rights", Dec. 24, not online)
December 29-30 --
Spreading to Australia? "Children exposed
to their parents' smoking may soon
begin suing them", predicts a prominent Australian lawyer. Note,
however, the real financial target: "Children would be reluctant to bring
such claims, he conceded, but not if the parents' home and contents insurers
were the opponents." Indeed, it's not hard to imagine some parents
conniving at suits against themselves as a way of scooping cash for their
offspring out of their homeowners' policies. Attorney Eugene Arocca
also predicts Australia may follow the lead of some U.S. courts which count
smoking as a factor against parents in child
custody battles. (Darwin Farrant, "Children may sue smoking parents",
The
Age (Melbourne), Dec. 27 (via Junk
Science)). (more on smoking and custody: SmartDivorce.com,
TOTSE,
ASH) (& see Jun.
3-4, 2002).
December 27-28 --
"Year's Weirdest News". News
of the Weird columnist Chuck Shepherd includes two litigation stories
in his ten-oddest list this year. ("A Look At...The Year's Weirdest
News", Washington Post, Dec. 26). Under the heading "Now That's
a Return on Investment": "A jury in Birmingham, Ala., ruled in favor of
Barbara Carlisle and her parents in their lawsuit against two companies
that overcharged them $1,224 for two satellite TV dishes, awarding the
threesome $581 million. After cries of 'jackpot justice,' the judge slashed
the award to a mere $300 million." (quoting Associated Press, May
11, Aug. 27) And: "A judge in Tampa denied tobacco-litigation
lawyer Henry Valenzuela his $20 million share (out of $200 million in legal
fees from the state's 1997 settlement with cigarette companies) because
he was late in paying his $2,500 share of a litigation expense". (Larry
Dougherty, "Lawyer won't get tobacco money", St. Petersburg Times,
July 27). The $200 million refers to the fee obtained by the former
law firm of Yerrid, Knopik & Valenzuela; collectively, law firms were
awarded $3.4 billion for representing the state of Florida.
December 27-28 --
Zero tolerance roundup. Scott Hogenson, writing at Conservative
News, recalls the time a sixth-grade classmate
in his small Minnesota town stabbed him in the hand with a pencil.
"I probably deserved it. Perhaps I teased her one too many times".
Both parties have since grown into happy, productive adults; how lucky
they are that it happened thirty years ago, at a time when the consequences
for her did not include a serious police record, expulsion, etc.
(Scott Hogenson, "Assault With a Deadly Pencil", Conservative News,
Dec.
10.) In Windsor, Ont., the Children's
Aid Society promptly launched an investigation after an 11-year-old girl
turned in a story for her 6th grade class about a fictional family with
a violent father. "This accusation was just thrown at me," said the
girl's mother, Laura Scalia, who is single, describing the visit of an
official who showed up at her door. "No effort was made to substantiate
who I or my daughter are....It seems so easy for them to screw someone's
life up." (Don Lajoie, "11-year-old's school essay sparks children's aid
probe", Windsor Star/National Post, Dec. 17).
The Christian Science Monitor says a zero tolerance policy may
work best if it "allows principals some leeway to define what 'zero' is",
which might seem to retreat from the original concept, no? (Peter
Grier and Gail Russell Chaddock, "Schools get tough as threats continue",
Nov.
5.) And we recently stumbled across a site entitled "Zero
Tolerance = Zero Common Sense = Zero Justice", which hasn't been updated
much lately but has scores of links and clips from the period 1996-98 documenting
the trouble kids were getting into when found in the possession of lunchbox
bread knives, water pistols, cough drops, and so on. (H.
Churchyard site).
December 27-28 --
"Bug lawyers" prosper. The Montgomery, Ala. law firm of
Crosslin, Slaten & O'Connor has found a happy niche representing exterminating
companies. (Its website: www.buglaw.com.)
Several of its attorneys have themselves become certified pest control
operators, and the firm has its own plane, which it dubs Bug One, to reach
clients quickly. "Reflecting the general trend toward litigiousness, pest
control operators are being sued more." (Richenya A. Shepherd, "'Bug Lawyers'
Invade the South", National Law Journal, Dec. 13).
December 27-28 --
You shoulda flunked me! Derek Boult, a former
student at Murrietta Valley High School near Riverside, California, has
sued the school and his football coach,
saying he was improperly given passing grades and promotions as part of
a policy of according favorable treatment to student athletes. The
lawsuit, which also names the school's former football coach, charges that
overly lenient grading deprived Boult of the right to an education as provided
by the state constitution. Eventually Boult proved unable to keep
up the requisite minimum 1.5 grade point average, had to switch to a remedial
school and was unable to graduate with his class. His attorney, Anthony
D. Weber, of Palm Desert, charges that the school should have given him
failing grades at an earlier point and taken him off the team. "He deserved
to have bad grades," he said. "He didn't deserve to play football."
(Daniel G. Jennings, "Athlete Sues School for Letting Him Pass", San Francisco
Daily
Journal, Oct. 25 -- not online)
December 27-28 --
"Few Settlement Dollars Used for Tobacco Control".
The year's most durable shock-the-naive story: states are spending only
a minor share of their enormous tobacco-settlement
booty on causes dear to anti-smoking activists, such as those billboards
and TV ads that hector smokers and vilify cigarette executives. "Of
the 23 states that have decided how to spend their money, the majority
appear to view the dollars primarily as a hefty new revenue source to be
spent on whatever the state needs." How many serious observers imagined
it would be otherwise? In Rhode Island, putatively in the vanguard
of children's-health activism as the first state to sue lead paint makers,
"teen smoking has increased from 21% in 1993 to 34% in 1999," if the numbers
from a state Health Department survey are to be believed. (Alissa Rubin,
"Few Settlement Dollars Used for Tobacco Control", Los Angeles Times,
Dec. 25).
December 27-28 --
150,000 pages served on Overlawyered.com.
Thanks for your support!
December 23-26 --
Christmas lawyer humor. A selection
culled from around the web:
"Merry Christmas from the Legal Department" (Yuletide wishes consisting
entirely of disclaimers):
Though we, the "Greetor," wish you well
In our Holiday Entreaty,
We limit all your claims, Dear Friend
(Hereinafter called the "Greetee").
We wish you dreams of Sugar Plums
And dancing Christmas Lights,
But if these Fancies come to Naught
You have no Vested Rights... " (more)
-- LaughNet; attributed to Edward G. McManus.
"What hath a lawyer to do with Christmas? For Christmas is a joyous festival
of loving and giving, in a dark, cold time of year; when we forget ourselves
in all kinds of silliness as we try to forget our troubles, a time of wild
abandon learnt from our pagan ancestors, and at bottom hath no logick to
it. Whereas your lawyer is a crabb'd and serious fellow, who hath studied
his eyes out reading the Law and aspires to be old and blind before his
time, and knows no more of wild abandon than a fence-post; a sober black-coated
mole of a man, who's always teaching us to be ungenerous, and always writing
mean-spirited documents that turn square corners and won't give a poor
fellow an inch; who wouldn't give away one of his old scintillas without
he gets a proper quid pro quo for't. He wouldn't know jollity if it bit
him, and never, never can forget himself; and if a handsome wench should
catch him 'neath the mistletoe would cavil and demur and plead in bar 'till
he's made her sign a solemn oath that she won't sue him for sexual harassment...."
(more)
-- "Joys of the season for divorce lawyers" by Virginia
attorney Richard
Crouch. Notwithstanding the puckish tone of the above, the piece
goes on to offer serious and sensible advice on how to avoid letting holiday
strains turn someone you love into a potential client of the divorce biz.
"The night before Christmas" (attorney's version): "Whereas, on an occasion
immediately preceding the Nativity festival, throughout a certain dwelling
unit, quiet descended, in which could be heard no disturbance, not even
the sound emitted by a diminutive rodent related to, and in form resembling,
a rat;..." (link now dead) (HumourNet, Dec. 6, 1995, from NEA Journal,
Dec. 1960)
"A lawyer's Christmas" (same idea): "...Hosiery was meticulously suspended
from the forward edge of the woodburning caloric apparatus... " (more)
(TnT Web Design site)
"Restructuring at the North Pole" "As you know, the eight maids-a-milking
concept has been under heavy scrutiny by the Equal Employment Opportunity
Commission. A male/female balance in the workforce is being sought....The
four calling birds will be replaced by an automated voice mail system with
a call waiting option. An analysis is underway to determine who the birds
have been calling, how often and how long they talked....The two turtle
doves'... romance during working hours could not be condoned. The positions
are therefore eliminated....Regarding the lawsuit filed by the attorney's
association seeking expansion to include the legal profession ('thirteen
lawyers-a-suing') action is pending." (more)
(author not known, Don Tolin webpage)
December 23-26 --
"Trial lawyers on trial". Trevor Armbrister's outstanding
new Reader's Digest article scrutinizing the plaintiff's bar is
now online
at the Digest website. It's got drop-your-jaw numbers
on campaign contributions, hard-hitting coverage of the tobacco-fee
scandal and the Florida and Maryland laws retroactively expanding tobacco
liability, a concise summary of the Norplant
and breast-implant outrages, new and pithy quotes from such keen observers
as John Langbein, Stuart Taylor, Jr. and Marc Arkin, a few words from the
editor of this site on the need for a loser-pays
rule, and much, much more. Don't even think of missing this one (Trevor
Armbrister, "Trial lawyers on trial", Reader's Digest, Jan. 2000).
December 23-26 --"Fen-Phen
Settlement Might Be Off". Not for the first time, lawyers rely
on the Mississippi courts to get unusually favorable results that they
hope to roll out nationwide. This Associated Press article also quotes
this site's editor (who's clearly on a roll today) (Paul Payne, AP/Excite,
Dec. 22, link now dead)
December 23-26 --"In
race to sue Microsoft, some trip". In the legal siege
of Redmond, "the race to sue -- and stake a claim in this hoped-for
gold rush -- is producing some memorable legal bloopers," reports David
Segal of the Washington Post. "Lawyers behind one suit filed
in a California state court, for instance, seemed momentarily confused
about Microsoft's core business. The complaint drafted by San Diego's
Krause & Kalfayan suggests at one point that the software maker is
actually competing in the generic drug market. 'These arrangements
have enabled Microsoft Corporation to exclude other developers of Intel-compatible
PC operating systems from obtaining the supply of such generic drugs' active
pharmaceutical ingredient ("API"),' the complaint states on Page 2."
Partner James C. Krause sheepishly admits that the firm copied out the
pleadings from an earlier class action
and forgot to change the relevant verbiage. And it wasn't the only
law firm caught up that way: the suit filed by the law firm of Shelby &
Cartee in Birmingham, Ala. describes' Microsoft's principal business as
being "within the State of Texas" and asserts its right to represent customers
injured by past purchases of Windows 2000 (which hasn't gone on sale yet)
and customers of "'MacIntosh Computer Company' (it meant Apple Computer
Inc.)"
Waite, Schneider, Bayless & Chesley, the Cincinnati firm of famed
master-of-disaster Stanley Chesley, charged that Microsoft's actions "prevent[ed]
development of a Windows 95 version of Netscape Navigator", but one was
introduced years ago; a lawyer with the firm explains that by "prevent"
he meant "delay". "It seems like all of these cases were written
under the influence of an active pharmaceutical ingredient," Microsoft
spokesman Mark Murray told the Post. "The only people who are going
to benefit from these cases are lawyers." (David Segal, "In race to sue
Microsoft, some trip", Washington Post, Dec. 21 -- full
story)
December 23-26 --
Jovanovic conviction overturned. A New York appeals court
has overturned the kidnapping and sex abuse conviction of Columbia University
graduate student Oliver Jovanovic. ("New York appeals court throws
out conviction of 'Cybersex' defendant", AP/CNN, Dec. 22). This site
briefly
commented at the end of July on the unfairness of Jovanovic's trial,
at which the judge, applying New York's "rape shield" statute, forbade
the defendant's lawyers to introduce as evidence emails from the accuser
which cast doubt on her story; for more details, see coverage in the New
York Post, by Post columnist Steve
Dunleavy, and by Brian
and Elisabeth Carnell for the Women's Freedom Network. Jovanovic
has served 20 months of a 15-year sentence. Update: all remaining
charges dropped against Jovanovic on Nov. 1, 2001 (see Jan.
9-10, 2002)
December 23-26 --
New subpage on Overlawyered.com: legal
ethics in crisis. Okay, we admit that if we pulled
together everything on this site raising questions of legal ethics we'd
have a subpage too big to use. So we've just gathered here links
and commentaries on a range of topics that includes witness-coaching, ethical
billing practices, civility, conflicts of interest, champerty and the role
of contingent fees, "pay for play", discipline of errant lawyers by the
bar, client protection, judicial ethics, and other matters likely to come
up in a course on professional responsibility.
December 22 --
A question of t-shirt velocity. On December
7 we summarized the "flying t-shirt" suit filed by Stewart Gregory
of Cincinnati against NBC's "Tonight Show" and host Jay Leno, alleging
he was "battered" and "forcefully struck" when the warm-up comic who preceded
Leno on the show blasted a freebie t-shirt into the audience with an air
gun. The next day the AP ran a short item on the case, which added
a new detail or two (earlier reports had Gregory alleging that he was hit
in the face, the new one says eye) and quoted the 56-year-old plaintiff:
"It's not frivolous when you get hit with a hard object traveling 800 feet
per second." ("'Tonight' Audience Member Sues", AP/Washington Post,
Dec. 8). Reader Bob Kanyok from St. Louis writes: "800 feet per second
is 545 miles per hour, the speed of a jetliner. A 'hard object' the
size of a t-shirt at 800 feet per second would have done a lot more than
injure his eye, it would have torn his head off. Odd how no one else
has picked up on this. Are all the reporters out there innumerate?"
December 22 --
Popular continuing-legal-education course: "How to Hammer Allstate".
Seminars with that title have been playing to overflow crowds of trial
lawyers around the country. The big insurance company has angered
plaintiff's attorneys by taking a hard line in defending claims filed against
its auto policyholders, especially where vehicle damage is minimal and
the claim is of soft-tissue injury. "There's a sense of righteous
indignation," says Robert I. Reardon Jr., who organized one such seminar
for the Connecticut Trial Lawyers Association which drew 320 lawyers.
Allstate lawyer William Vainisi agrees that the company has been mounting
a tough defense effort but says it is directed against "inflated demands
and built-up medicals". (Mark Ballard, "Hot CLE Class: Hammering
Allstate", National Law Journal, Dec. 10). The company has
also infuriated attorneys in recent years by contacting persons who have
been involved in crashes with its policyholders and urging them to consider
settling the claim without a lawyer, a step that its opponents charge violates
rules against the unauthorized practice of law. (Danielle Rodier, "Allstate
Sheds UPL Claim, Still Faces Consumer Protection Suit", Legal Intelligencer,
April 14; ArkTLA; W.V. bar (link now dead); Phila. Trial Lawyers Assn.;
NYSTLA;
Conn.;
Insure.com).
More: Apr.
18, 2000.
December 22 --
Pay us for this service. Dr. Xavier J. Caro was stunned
recently when lawyers for his wife Cora, from whom he is seeking a divorce,
demanded $550,000 from him as a "community loan" as a prepayment of costs
for her forthcoming criminal defense. Cora Caro is in the Ventura
County, Calif. jail on charges that she murdered three of the couple's
four sons, ages 5, 8 and 11, on Nov. 22 before turning the gun on herself
(she survived). The demand letter from Agoura Hills attorney Rand
E. Pinsky "lists $600,000 to $800,000 as the equity value of the couple's
Presilla Road home as well as investments and properties they own", according
to the L.A. Times. "The normal procedure in a criminal matter is
that defense costs are prepaid," Pinsky said. Dr. Caro has countersued
his wife. "Doctor Files Wrongful Death Suit Against Wife", L.A. Times,
Dec. 16).
December 22 --
Tobacco fee fight looms in Mass. Massachusetts Attorney
General Thomas F. Reilly is vowing to fight "with every resource we have"
to prevent the Boston law firm of Brown Rudnick Freed & Gesmer from
collecting roughly $500 million, which the firm says is its share of a
$2 billion contingent fee owed by the state over 25 years to five firms
that represented it in the tobacco-Medicaid
litigation. Reilly says the Brown firm has already been awarded
$178 million for the representation: "At some point, enough is enough."
(Frank Phillips, "Reilly to fight claim of lawyers", Boston Globe,
Dec. 20).
December 21 --
Accessible websites no snap. It's hard to
think of a better way to slow the growth of the Net than to menace web
providers with exposure to liability for mounting or running ordinary,
garden-variety websites or online services. Yet under prevailing
interpretations of the Americans
with Disabilities Act, both large and small e-tailers, online publishers,
and applications providers may be open to damage suits on the grounds that
their offerings are not accessible (as the term goes) to disabled users.
Last month the National Federation of the Blind filed a lawsuit against
America Online, charging that it has not moved with sufficient vigor to
make its services fully available to sightless users ("Lawsuit: AOL Ignores
Blind", Reuters/Wired.com, Nov. 5, link now dead). AOL is
a big business, of course, but there's no reason to think that accessibility
obligations under the ADA do not extend all the way down to many "mom-and-pop"
ISPs, applications providers, online magazines and journals, e-stores,
and so forth.
What exactly, does it mean for a site or service to be
accessible? Disability advocates have declared many commonly encountered
features in web design to be unacceptable barriers to one or another group
of users. Among them are displays that depend on color to convey
information, common methods of employing tables and graphics to assist
in page layout, navigational designs that respond to mouse but not keyboard
commands, and streaming audio when not accompanied by text translation.
(Adam Clayton Powell III, "Is Your Site Accessible?", Reason, July
1999; W3C, Web Accessibility Initiative).
Web operators who ignore the advice of experts in this field must be seen
as setting themselves up at some point for potential costly lawsuits.
Yet the alternative of giving top priority to ADA compliance is hardly
attractive either, since it might involve tearing down existing nonconforming
webpages pending future redesign, refusing to employ developers who haven't
gone through special courses aimed at helping unlearn common page-construction
habits, and abandoning decentralized publishing models in which many different
employees, group members or customers are permitted to erect free-form
content on a site. Almost incidentally, another effect would be to
involve publishers of all shapes and sizes -- First Amendment or no --
in ongoing, intimate negotiations with government agencies and private
pressure groups over questions of what they will and will not be allowed
to publish.
But not to worry, say many disabled advocates -- "Bobby"
will save the day! Available at the Center
for Applied Special Technology site, "Bobby"
is a free program with sponsorship from leading businesses that will review
any website and automatically diagnose where it needs to be fixed to provide
handicap accessibility. Sounds easy enough, right? To be sure,
the wave of favorable publicity  about
Bobby this summer revealed the embarrassing fact that many of the federal
government's own major websites, including the White
House site itself, were not Bobby-compliant -- this even though the
U.S. Justice Department was rattling its sword to call private companies'
attention to the issue of high-tech accessibility. (To see the ways
in which this site falls short on Bobby, click here;
to see how badly the White House still flunks, here).
Given that pretty much everyone's website seems to be
out of compliance, ADA or no ADA, it was with much interest that we noticed
the splashy, full-page ads recently announcing the launch of a major new
website, evidently with substantial financial backing behind it, that would
be specifically geared to the needs of disabled users. The site,
called WeMedia, is affiliated
with We magazine and aims to create an online community of disabled
users for purposes of both service and advocacy. Finally, a chance
to see how the experts themselves deal with the accessibility problem!
You can therefore imagine how crestfallen we were to find the following
notice blazoned on the site's front page: "Currently, We Media's site is
not 100% 'Bobby' compliant. However, we are working very hard over the
next few weeks to make sure that it becomes so." [Update: a check on 2/7/00
finds that WeMedia now displays a Bobby approval button.]
December 21 --
"Lawyers stealing less, clients say." Now
there's a jolly, upbeat headline for you! "For the first time in
its 16-year history", the fund that reimburses victimized clients when
Empire State attorneys commit theft or fraud is experiencing a sharp drop
in payouts, according to the New York Law Journal. Officials
say they believe the drop in client-cheating is genuine and credit, in
part, two major reforms: banks are now directed to notify the client-protection
fund when lawyers bounce checks from their escrow account, and insurance
companies that pay to settle personal-injury claims are now directed to
notify the claimants themselves about the payments rather than rely on
their lawyers to tell them. (John Caher, "Lawyers stealing less,
clients say", New York Law Journal, Nov. 19).
December 21 --
Oops! Didn't mean nothing by that, ma'am.
At D. McRae Elementary School in Fort Worth, Tex., counselor Seth Shaw
got in trouble, according to his account, after he said "Hello, good looking"
to a female newcomer he encountered in the office. She turned out
to be an outside consultant there to conduct a training workshop on sexual
harassment. Officials asked Shaw, a nine-year veteran, to resign
over the incident, but school trustees settled for a 20-day unpaid suspension.
(Martha Deller, "Fort Worth school counselor assessed 20-day unpaid suspension",
Fort Worth Star-Telegram, Dec. 17).
December 20 --
Pack your toothbrush, son. Five years ago
young law clerk Richard Poff decided to blow the whistle on questionable
practices he'd seen firsthand at his employer, the influential Birmingham,
Ala. plaintiff's firm of Roden, Hayes & Carter. The firm, he
said, had been paying hospital and police employees for leads
in injury cases, and charging gambling and golf junkets, Royal Caribbean
cruises and liquor store bills against client accounts. What happened
next? All three name partners drew bar suspensions and pled to misdemeanors
after arguing, in part, that the expense-charging had not affected clients'
eventual take from their cases.
So was Poff given a hero's thanks by a local legal profession
grateful for his help in cleaning itself up? Not exactly: he became
virtually unemployable, was hit with a still-pending $1 million default
judgment for libeling his old boss, got thrown in Birmingham jail for three
days, and was ordered sent for psychiatric examination. "It seemed
as though every judge in town was warning him to pack a toothbrush."
For a while, a judge even ordered the state's press not to report on the
proceedings. The state's Supreme Court has yet to rule in the affair,
but the lesson's been made crystal clear for anyone who might be tempted
to emulate Poff: don't try to fight the legal fraternity. (Michael
Goldhaber, "Crazy in Alabama", National Law Journal, Dec. 15).
December 20 --
Cute names for laws: enough, already. One
example of the triumph of sentiment over dispassion in contemporary law
is the naming of new criminal statutes after the victims they're meant
to avenge. Thus we got the "Megan's Law" sex offender registries,
followed more recently in New York by "Buster's Law", a felony animal abuse
statute named after a murdered cat. We're not alone in our dislike
for this practice: Albany lawyer Terence Kindlon says you shouldn't "give
cute names to law...Can you see the words 'Buster's Law' coming out of
the mouth of Oliver Wendell Holmes?" Currently defending a Rensselaer
Polytechnic student who faces a possible two-year jail sentence for breaking
his dog's leg during what he says was an attempt at discipline, Kindlon
believes the law's headline-friendly nomenclature is presenting him with
an uphill battle. "It is sort of a celebrity law, it is a law with a built-in
press agent." (Joel Stashenko, "Attorney questions practice of naming laws
after victims", AP/Schenectady Gazette, Dec. 19)
December 20 --
Those Bronx juries. "In civil cases, they
are extraordinarily generous. 'Let's face it: the Bronx civil jury is the
greatest tool of wealth redistribution since the Red Army,' said attorney
Ron Kuby, who won a $43 million civil judgment against subway gunman Bernie
Goetz from six Bronxites." ("Bronx juries: all things to all people",
AP/Newsday, Dec. 18).
December 20 --
Stroller-parking: then and now. Last Tuesday
a Manhattan jury rejected a Danish woman's claim "that New York City police
officers had falsely arrested her outside an East Village restaurant after
she left her baby daughter in a stroller on the sidewalk to go inside for
a drink". It did, however, award Anette Sorensen $6,400 in compensatory
damages for the cops' failure to inform her that she had the right to summon
help from the Danish consulate, plus $60,000 in punitive damages -- an
outcome that, perhaps oddly, both sides in the case appear to view as vindication
for the police. In today's New York Times, Sven Larson writes
a letter from Hvidovre, Denmark, to dispute Sorensen's claim that she was
only following the practice in her home country: "While many [in Denmark]
leave carriages outside shops for a couple of minutes, no one parks a baby
outside a restaurant after 6 p.m. for as much as an hour." The difference,
he says, is that in Copenhagen "the police would have asked her kindly
to bring the carriage inside and nothing more would have happened".
(Benjamin Weiser, "Damages but No False Arrest in Stroller Case", New York
Times,
Dec. 15; letter, Dec. 20). By coincidence, we happened to be visiting
James Lileks's Institute of Official Cheer, an online archive of vintage
ad images, and found this
1950 A&P grocery store ad from Life treating it as a selling
point for the market that so many mothers left their baby prams out front.
December 20 --
News flash: Bill Clinton endorses loser-pays!
He now thinks parties charged with wrongdoing should be able to collect
for the burdensome cost of their legal defense, if they've prevailed in
the end. Whoops, scratch that...turns out Bill wants his
legal fees covered re the independent counsel investigation, but everyone
else
who gets dragged into court and eventually prevails can just go fish.
(Charles Babington, "Clinton May Ask U.S. to Pay Legal Fees", Washington
Post, Dec. 18)
December 20 --
Welcome Robot Wisdom readers. We
got a mention yesterday on Jorn Barger's
weblog, one of the earliest, most eclectic and most widely followed
examples of the genre.
December 17-19 --
Splitsville, N.Y. Cover story in last week's New York
on the city's big-league divorce biz
arrives at a consensus view of the broad legal trends ("equitable distribution"
keeps getting messier and more expensive, "lawyers have to play constant
catch-up as new, intangible assets are added to the marital-property pot",
judges have vast discretion so it's hard to predict what they'll do), celebrity
tactics (on the oft-used gambit of threatening to send dirt to the tabloids,
the "bullet of embarrassment only has cash value when it's in the chamber"),
the cushy, cash-vacuuming role of minor players (asset evaluators and guardians
of children's interests, appointed by the court and paid out of the marital
estate, can "make a fortune", agrees the city's top judge) and social strain
(guest at East Side dinner party bursts into tears on finding she's been
seated beside lawyer who'd represented her husband, but it wasn't easy
to re-seat him: "At a table for ten," he explains, "I'd done five divorces").
Bitter clients? No trouble finding those: "Being the best divorce
lawyer in New York is like being the best devil in Hell," says publisher
Judith Regan, whose own split has cost more than $1 million over seven
years. "It means you're avaricious, conniving, and vicious....Divorce
law is not about justice or fairness or protecting anyone's rights or what's
best for a child; it is big business." "The first thing they get
is a net-worth statement," says another unhappy customer, plastic surgeon
Ronald Linder. "Then they make sure they get your total net worth."
Lawyers counter that unreasonable clients often spurn settlement and insist
on fighting every issue, though attorney William Beslow notes that "there's
a built-in incentive to keep litigation going by either purposely misadvising
clients or telling them what they want to hear, which solidifies the relationship
but ensures conflict".
Attorney Raoul Felder, as is his wont, dispenses extreme quote.
Of charges that threats of publicity constitute extortion: "Isn't every
lawsuit a form of legal extortion? The law is constructed that way.
Pay me or go to court." According to New York, a "low point"
in Felder's career came when he "[p]ublicly declared Robin Givens wanted
nothing from Mike Tyson one day after privately demanding an $8 million
settlement." "On one level, it's sleazy," he says. "On another,
I'm not robbing supermarkets." (Michael Gross, "Trouble in Splitsville",
New
York, Dec. 13).
December 17-19 --
Truth in recruitment? An Essex County, N.J. jury yesterday
awarded more than $10 million to former New York Giant football player
Philip McConkey on the grounds that he had been lied to when he was recruited
for a management job at an insurance brokerage which was in talks to
sell itself to a larger company. McConkey said he would never have
taken a job at Alexander & Alexander in May 1996 had he realized the
firm would be bought in December of that year by insurance company Aon
Corp. The job offered base pay and benefits of $352,000 a year,
with a chance of commissions of $3 million to $5 million a year. The following
March he was fired from the job, he said. Frank G. Zarb, chairman
of A&A at the time, testified that when he interviewed McConkey he'd
already engaged in preliminary talks with Aon, but considered A&A's
management as the side that would come out on top if the two companies
were combined.
The company also pointed to McConkey's employment contract, which it
said demonstrated that he was an "at-will" employee who could be dismissed
for any reason. In vain: the jury voted the former wide receiver
and Navy helicopter pilot $3 million for lost income, $2 million for emotional
distress, and $5 million in punitive damages. Zarb himself, however,
"was dismissed as a defendant before the trial started"; he is now chairman
of the National Association of Securities Dealers, which runs the NASDAQ
stock market. The case may represent a breakthrough for employment
plaintiff's attorneys who have for years been pushing "recruitment fraud"
theories of recovery. (Jeffrey Gold, "Jury Finds NASD Chairman Lied",
AP/Excite, Dec. 16)
December 17-19 --
Transit shutdown. A jury has awarded $50 million to Shareif
Hall, who lost a foot in an escalator accident on the Philadelphia subway
system, and $1 million to his mother, Daneen. Robert T. Wooten,
a board member of the Southeastern Pennsylvania Transportation Authority
(SEPTA), called the jury verdict a "very, very serious financial blow"
to the finances of the transit agency, and predicted service cuts and fare
increases if the award or any substantial fraction of it is upheld on appeal.
According to the boy's lawyer, Thomas Kline, the jury was angered when
memos emerged from the transit agency that stated that the escalators were
in poor and deteriorating condition. State law limits personal-injury
awards against public entities, but Kline successfully recharacterized
the claim as in part one of deprivation of the boy's civil rights; $25
million of the jury's award was to compensate the boy for that purpose,
and therefore is not subject to the limit. ("Boy awarded $50
million in Pennsylvania escalator accident", AP/CNN, Dec. 15, link now
dead; Claudia N. Ginanni, "Documents Uncovered Mid-Trial Fuel $51 Million
Injury Verdict v. SEPTA", PaLawNet, Dec. 15 (subscription))
Update: After the verdict, Judge Frederica Massiah-Jackson
expressed anger over SEPTA's mishandling of physical evidence and failure
to provide relevant documents requested by the plaintiffs. The agency
settled the case for $7.4 million and pledged to improve both its escalators
and its litigation behavior in the future. (Claudia Ginanni, "Judge
Fines SEPTA $1 Million Authority; Held in Contempt for Withholding Evidence",
The Legal Intelligencer, Dec. 23; "SEPTA Settles Escalator Suit for $7.4
Million", Jan. 6) (see Jan. 29-30
commentary).
December 17-19 --
"New Mexico county is ordered to use non-English-speaking jurors".
A judge ruled this fall "that potential jurors in Dona Ana County cannot
be eliminated simply because they do not speak English". Now officials
are wrestling with questions like: should each juror get his own translator?
How will the presence of translators in the jury room influence deliberations?
What if a juror facing a language barrier asks to be excused from sitting
on a case? Court-paid translators can expect to get a workout, given
that all the testimony, documents and exhibits, lawyers' arguments and
judges' instructions in cases will commonly be in English. And Spanish
is not the only language that must be accommodated; one prospective juror
spoke a particular Indian dialect the translation of which would have required
the services of a specialty translator at $180 an hour, had the juror not
been excused for health reasons. (AP/FindLaw, Dec. 13)
December 17-19 --
Most unsettling thing we've heard about Canada in a while.
We knew political correctness held great sway in the public life of our
northern neighbor, but didn't realize the following: "Canada's
most powerful tool against politically incorrect speech is its hate speech
code, which prohibits any statement that is 'likely to expose a person
or group of persons to hatred or contempt' because of 'race, color, ancestry,
place of origin, religion, marital status, family status, physical or mental
disability, sex, sexual orientation or age.' Prosecutors are not
required to show proof of malicious intent or actual harm to win convictions
in hate speech cases, and courts in some jurisdictions have ruled that
it does not matter whether the statements are truthful." (Steven
Pearlstein, "In Canada, Free Speech Has Its Restrictions: Government Limits
Discourse That Some May Find Offensive", Washington Post, Dec. 12)
December 16 --
Got milk? Get sued. Physicians
Committee for Responsible Medicine, a veggie-oriented
group of litigious bent that claims 5,000 physician supporters, last figured
in these columns on Sept. 25 when it
urged the federal government to file a tobacco-style lawsuit against "Big
Meat". Now comes word that PCRM expects Massachusetts state senator
Dianne Wilkerson to join it in a lawsuit it has organized charging that
the federal government is being racist by distributing milk to schoolchildren.
The reasoning? Black children are more likely than white children
to display lactose intolerance, a condition that prevents them from digesting
one of the major nutrients in milk. Wilkerson was also concerned
to learn that a large cereal manufacturer was sending free cereal to the
Boston schools, thus encouraging more milk consumption. "I want us
to become health-food conscious, lactose-free public schools," Wilkerson
told the Boston Globe. "There are other options, like calcium-fortified
juice." ("Got milk? Minority schoolchildren do, and maybe they shouldn't",
AP/Boston Globe, Dec. 13, link now dead (via Lucianne.com))
December 16 --
GM verdict roundup. Marion Blakey,
who used to run the National Highway Traffic Safety Administration, finds
it remarkable that verdicts like this summer's Anderson v. General
Motors (see our July 10, August
27 commentaries) allow lawyers to shift legal responsibility
for accidents away from drunk drivers to automakers
with their deeper pockets, at the eventual expense of car buyers.
("Drunken drivers make mockery of justice", Detroit News, Dec. 9).
The Los Angeles jury's initial award of $4.9 billion, since reduced by
the judge to a putatively more reasonable $1.2 billion, "surpasses the
combined gross domestic product of Afghanistan and Albania", writes op-ed
contributor Jim Lafferty ("Two astronomical lawsuit awards may be start
of dangerous trend", San Diego Union-Tribune, Nov.
14). The Federalist Society has
mounted a series of panel discussions around the country on the lessons
of the Anderson case, and has posted transcripts
of the proceedings on its website. And on Monday the Christian
Science Monitor ran an op-ed point-counterpoint about the case between
R. David Pittle, technical director of the remorselessly pro-litigation
Consumers Union, and classic-car auctioneer Mitch Silver. (R. David
Pittle, "Fix
car design before lawsuit", and Mitch Silver, "Create
wise policy, not crash-proof cars", Dec. 13). Update Aug.
3, 2003: case settled on undisclosed terms.
December 16 --
Gotta regulate 'em all. Quebec
Language Minister Louise Beaudoin has threatened legal action against the
makers of Pokémon trading cards for allowing them to be sold in
the province without French-language packaging or instruction. Ms.
Beaudoin said a French version of the popular cards is sold in France itself,
Belgium and Switzerland, but is not available in la belle province
despite local laws mandating use of the language: "I don't understand and
I can't accept it ... we hope this ultimatum will result in our law being
respected." The cards' manufacturer, Wizards of the Coast of Renton,
Wash., says rights to sell the Japanese-origin cards are divvied up geographically,
and that it has North America; it completed an English-language translation
first, and now has finished work on a French version which it expects to
have on sale in Quebec by February. (Sean Gordon, "Quebec minister
demands French version of Pokemon", National Post (reprinted from
Montreal Gazette), Dec. 10) (earlier Pokémon coverage:
Oct. 13, Oct.
1-3).
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