ARCHIVE -- JULY 1999 (I)

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July 15 --  Honey, you've got mail.  Some Floridians are learning about their impending divorces by opening their mail to find "Dear prospective client" brochures from local divorce lawyers.  The phenomenon can arise when attorneys solicit would-be clients before a departing spouse has served them with papers. 

The U.S. Supreme Court granted constitutional protection to some forms of attorney solicitation back in the 1970s, and it has since become an ever-more-systematic business.  Private services compile names from daily divorce filings and sell them to lawyers, who then try to beat competitors to the punch by getting brochures to prospects as soon as possible, many hiring private delivery services.  "These things are hitting the mailboxes of the respondents before they even know their spouse has officially filed," said Warren Wilson, a Clearwater lawyer who's trying to get the state bar's ethical rules changed to curb the practice. 

Wilson says one man returned from his mother's funeral in South America to learn from three lawyers' letters in his mailbox that his wife had left him.  Aside from inability to reach the other party, service of process can be delayed for various other reasons, including holidays and vacations, tactical or prudential reasons, or perhaps even second thoughts about whether to go through with the action.  In a case that happened this summer, Wilson says, a Clearwater woman filed for divorce but did not serve the papers at once, waiting for family members to fly in to protect her.  Before that could happen, a lawyer's flyer reached her husband, who came to the woman's house and beat her.

Florida lawyers must observe a 30-day waiting period before soliciting accident victims, but no such rule applies in matrimonial cases, a situation Wilson would like to change.  (Associated Press and Canada's National Post, links now dead.)

July 14 --  Do as we say, please.  "We have been so focused here in New Orleans on getting guns off the street and protecting our citizens," declared Mayor Marc Morial in making his city the first to sign up in the trial lawyer campaign to sue gun makers.  Which makes it rather ironic, as Jake Tapper reported in Salon yesterday, that one of the leading sources of guns on the resale market is none other than the city of New Orleans.  In what may be the largest deal of its kind ever to happen in the U.S., Big Easy's city hall recently helped itself to a nice budgetary windfall by recycling for street use, through an Indiana broker, some 7,300 guns, most confiscated from lawbreakers.  They include TEC-9s, AK-47s, an Uzi and various other semi-automatics whose importation and manufacture the U.S. Congress banned in 1994.

New Orleans's suit demands that gunmakers equip their wares with child-proofing and safety locks.  But it attached no such condition to the resale of the guns in its own inventory, only two of which had locks among the thousands it shipped.  Nor did it require that the guns be resold only to other police departments, a financially unwelcome stipulation since weapons may fetch only half as much on the market when that particular string is attached.

Other localities now suing gun makers while profiting from gun swaps, often of used police weapons as distinct from confiscated guns, include Boston, Detroit and Alameda County, Calif.  "In essence, these cities served as gun distributors themselves," writes Tapper.  Sometimes cities have arranged deals through the very manufacturers they're now suing, such as Glock.  Boston is charging gun sellers on a newly minted legal theory that they displayed "willful blindness" to what happened after guns left their hands, but itself attached no strings to resale when it got rid of more than 3,000 .38s. 

Another of the novel legal theories holds it unconscionable for manufacturers to cater to the full sales demand of shops located in gun-friendly states and suburbs when they know a certain percentage of the merchandise will wind up in the hands of city residents.  Morial has defended New Orleans's gun-dumping on the grounds that the city required that the weapons not be immediately resold in Louisiana ("not in my bayou", as Tapper puts it, pointing out that it's apparently fine with Morial if guns flood into any city outside his own state).  But predictably, not long after an initial shipment to Texas, some of the guns in the deal began showing up at New Orleans shops.

Meanwhile, trial lawyers have recruited Indian tribes to sue tobacco companies even though the exemption of reservations from state taxes has long made cigarette sales a huge money-maker for many tribes.  Albuquerque trial lawyer Turner Branch, who had signed up 15 tribes and was negotiating to represent 50 more, conceded to the Rocky Mountain News in March (link now dead) that some of his prospective clients themselves numbered among tobacco sellers but said it was "terrible they got put in that position", which makes running a tax-free smoke shop sound like something that could descend like hail on any of us on the wrong day.  (Coming soon: they forced us to run casinos.)  It will keep happening so long as the trial lawyers can keep getting laws changed retroactively. 

July 13 --  Puff, the magic fees.   The private lawyers representing the state of Wisconsin in the tobacco wars initially demanded $847 million in fees, then agreed to accept $75 million.  (Well, close enough.)  Then they fought to prevent public disclosure of the billing records on which their fees were based, poignantly citing "ethical issues".  Three newspapers went to court to pry open the informational clamshell, and the state attorney general's office finally released a 900-page stack of records yesterday, with results reported in this morning's Milwaukee Journal-Sentinel. 

The lawyers now claim to have spent 26,284 hours on the case.  Taking this claim for a moment at face value, it would indicate that their initial fee demand worked out to an average rate exceeding $32,000 per hour, and that even after backing off on that demand they will still be making fees of $2,853 an hour.  (The law firms involved are Habush, Habush, Davis and Rottier of Milwaukee; Brennan, Steil, Basting and MacDougall of Janesville; and Whyte Hirschboeck Dudek of Milwaukee, none of which returned the Journal-Sentinel's calls for comment.)

How many of these billable hours were reasonable and necessary?  They include time spent purportedly by lawyers on matters more often handled by office administrators, such as setting up bank accounts and securing office space, furniture and parking.  What about time spent on legal issues?  The artful structure of the Medicaid suits makes it hard to know how much legal research was really needed for any individual state's suit; lawyers representing a few states like Minnesota could do much of the heavy lifting on which other states' lawyers could then piggyback.  At any rate, the Wisconsin lawyers' own accounting includes ample amounts of time spent on fee negotiations themselves; on working the press and scoping out the Governor and other political players; and in preparing a constitutional challenge to proposed legislation that would curb their fees. 

In addition, the lawyers billed $2,037,668.45 in reimbursable expenses.  This included $7,818.80 for a chartered plane to fly attorney Robert L. Habush, former president of the Association of Trial Lawyers of America, roundtrip from Florida to Washington (coach fare would have been $906), $851.50 for roundtrip limo service to whisk Habush from Milwaukee to Madison and back on May 5, 1997 (among other limo bills for trips between those cities), and $800.75 for New York City limos during a day of fee negotiations. 

The Ashland Press in northern Wisconsin editorially pointed out in April that the median household income in its neck of the woods ran at $20,000 in 1990, which meant the lawyers had demanded as much for an hour of work as the typical family made in a year.  (The state, meanwhile, had requested $209 an hour for its own lawyers.)  A state bar report claims the average Wisconsin lawyer makes $44,000 a year, corresponding to about an hour and a half of the tobacco lawyers' time as per their initial demand and 15 and a half hours (potentially, one very long day's work) under the award they settled for.

Tobacco fees have already become a hot political topic in other states including Massachusetts (link now dead), where Gov. Paul Cellucci has called the local fee request "obscene", and Texas, where cozy fee dealings have been referred to prosecutors for possible action. 

July 12 -- Loser-pays endorsed by Martina.  "The loser of a lawsuit should pay the legal fees," writes Martina Navratilova.  "These days, as soon as a person feels slighted or injured (physically or emotionally), they look for someone to sue....The hope is not to win, but for the quick $50,000 -- because it's cheaper to settle than to fight."  The tennis pro's comments are among the highlights of a new paperback entitled 250 Ways To Make America Better, compiled by Carolyn Mackler and the editors of George magazine (Villard, 1999). 

Not only do costs and insurance rates go up when targets have to settle, Navratilova points out, but "prohibitive rules increase, and freedom is diminished.  Freedom used to mean that one is free to achieve, to dream, to aspire, to think -- free to do what is right.  By assigning blame elsewhere, people are taking our freedom away."  There's more, all of it eloquent, in the great athlete's contribution (which is numbered #9 of the 250 "ways to make America better").  Moreover, loser-pays is also the first reform proposed by musician Ice T in his entry (#41).  "Let them pay the money, and they'll leave you alone."  Your editor's entry in the volume is "#98: Abolish the Peremptory Challenge". 

Speaking of jury selection, your editor's thoughts on the trial that led to last Wednesday's Miami cigarette verdict appear as today's "Rule of Law" column in the Wall Street Journal (online subscription required).  Readers of Overlawyered.com had a chance to see much of this material first (see entries for July 4 and July 8, below).

July 11 -- Thought for the day. From American Lawyer's symposium last November on the international practice of law: "It is very sobering to me, as an American, and someone who actually believes in our system, to see foreign companies say over and over that the one thing they won't put in their contracts is a clause that this is going to be governed by American law or be subject to an American jurisdiction.  It makes one wonder whether we are really the most sophisticated commercial country in the world or a banana republic when you get major worldwide corporations doing that. I think it is a sobering issue for the American judicial system."

-- Robert Joffe, deputy presiding partner, Cravath, Swaine & Moore

July 10 --  In L.A., redesigning the Chevy.  More details have begun to emerge about yesterday's $4.9 billion Los Angeles jury verdict against General Motors to six people severely burned in a crash of their 1979 Chevrolet Malibu.  A drunk driver plowed into Patricia Anderson's car from behind at a red light at a speed estimated by GM at 70 mph and by plaintiffs at 50 mph; the gas tank caught fire.  The plaintiffs argued that it was unconscionable for GM to place the fuel tank 11 inches forward from the rear bumper when an earlier design had placed it more than twenty inches forward.  Of course other gas tank placements, while reducing the risk from rear-end impacts, tend to increase the risk from other types of impacts, such as those from the side -- and in so doing put the fire source closer to the passenger compartment.   Yet according to GM lawyer Richard Shapiro, quoted in the New York Times (link now gone), Judge Ernest Williams of L.A. County Superior Court barred the company from introducing into evidence crash test data showing that the plaintiffs' proffered alternative design was in fact less safe. 

GM's Shapiro said Judge Williams also barred the company from introducing data on the actual safety history of the vehicle, which has now been on the road for twenty years, long enough for a very full picture to emerge of its overall performance in crashes.  In those twenty years, the National Highway Traffic Safety Administration has apparently never deemed the location of the Malibu's fuel system to be a problem.  In the controversy a few years back over the placement of gas tanks on the side of full-size GM trucks, plaintiffs' lawyers managed to divert attention from the fact that nationwide accident data showed the trucks to be substantially safer in collisions than the average vehicle on the road, a topic your editor wrote up at the time for the Wall Street Journal. 

One reaction to the news that a 1979 Malibu can be hit from behind at a differential speed of (possibly) 70 mph and have all six of its passengers survive is to wonder whether they still build 'em that sturdy anymore -- especially considering the mandated fuel economy rules which have forced automakers to lighten up cars structurally since then.  (Your editor is  quoted in this morning's AP business story as saying, with respect to vehicles that can withstand being rear-ended at 70 mph, "There is a word for that kind of car: a tank.'')(Sacramento Bee).

For those who are still goggling at the record $4.9 billion sum that the jury plucked from the air (with trial lawyer assistance) as a suitable damage figure -- $107 million was compensatory, the rest punitive -- here are some comparisons.   A quick flip through the World Almanac reveals that $4.9 billion exceeds the gross domestic product of a long list of United Nations member countries (I stopped counting after two dozen).  In fact, you could roll together the GDPs of the following eleven UN member states and still not get up to $4.9 billion: Bosnia-Herzegovina, Grenada, Comoros, Vanuatu, St. Kitts and Nevis, St. Vincent and the Grenadines, Micronesia, Dominica, Palau, Marshall Islands, and San Marino. 

A crowning outrage: GM's lawyer said the judge had also refused to allow the jury to hear evidence that the other car's driver had been drunk and went to jail.   News stories have still not named the drunk driver.  (see update, August 27, and Overlawyered.com's page on auto-safety litigation).

July 9-11 -- Overlawyered.com's first award.   We're happy to be named today's Conservative Site of the Day, an honor given out by Steve Martinovich's Enter Stage Right zine.  We've discovered a lot of interesting web resources by browsing ESR's archive of past Sites of the Day, including the Unofficial P.G. O'Rourke Page, the Critiques of Animal Rights page, the National Anxiety Center and Forfeiture Endangers American Rights.

July 9 -- Be sensitive to Fluffy, or else.  The Seattle Times reported in April that the owner of a small consignment clothing shop in the city's Wallingford neighborhood has been forced to pay more than $650 and undergo sensitivity training because she refused to let a woman bring her dog into the store.  Last November, Chaya Amiad entered Sharon Kempler-Jones's Gypsy Trader shop with a small, shaggy dog on a leash and was told she had to leave it outside.  "She became very upset," recalled the store owner, who said the rule made sense because dog dander and clean clothing don't mix.  "She said, 'Well, this dog can go anywhere, and you are going to hear from my attorney.'"  Sure enough, within days a letter arrived from the Seattle Office for Human Rights charging Kempler-Jones with denying a disabled person access to her business. 

Disabled?  Amiad wasn't deaf or blind, nor did she display any other visible handicap.  Instead, it turned out that she was "emotionally dependent" on the dog.  She even produced a note in which her psychologist assured the human rights office that the dog "has been privately trained to assist Ms. Amiad with cognitive disorientation and confusion" and that without this canine companionship "Ms. Amiad would probably become housebound and highly dependent."  And that was enough for them to rule that Kempler-Jones had committed disability discrimination -- never mind that she had no way to know Amiad's psychiatric status at the time.  She was ordered to pay a fine and submit to sensitivity training, one element of which presumably consisted of writing fifty times on a blackboard: if someone asking for special treatment claims to be disabled, better take their word for it.

A few years back the Wall Street Journal's editorialists reported on a case where the San Diego Zoo was targeted with disability-bias charges because it declined to let service dogs accompany visitors into exhibits where the resident animals might by instinct become agitated upon seeing even a well-behaved dog.  The zoo had offered to provide individual human guides instead, which didn't satisfy disabled-rights advocates.  (The WSJ piece is not online to nonsubscribers, but you can read disabled-rights advocates' side of the story).  An online brochure from the Association of the Bar of the City of New York explains that business owners "almost never" have the right to decide for themselves whether to admit a service animal.  It also mentions New York's potential $50,000 fines (aside from lawsuit damages) for first violators, and notes that when federal, state and local laws are in conflict, whichever is most favorable to the disabled complainant prevails. 

July 8 -- Personal responsibility takes a vacation in Miami.  Most observers are betting yesterday's jury verdict against tobacco companies will be overturned on the issue of class certification.  In the mean time, here are some preliminary tidbits that indicate how such cases get tried these days before friendly judges.  At jury selection last summer, prospective jurors were quizzed on their reading habits and views on seemingly unrelated issues like gun control. Nine of the first twelve prospective jurors got purged, mostly for holding views considered prejudiced against the plaintiffs -- apparently typified by a former smoker of three decades who said "I just think people are and have been well aware of the detriments of smoking...To come back after the fact, I find that somewhat ridiculous."  People with that sort of "bias", apparently, mustn't be allowed to serve on juries.  (Daytona Beach News-Journal trial coverage).  Six jurors remained.

Through the proceedings, plaintiff's attorney Stanley Rosenblatt packed the courtroom with attendees wheezing loudly, with portable oxygen tanks and mechanical voice boxes (CNN) -- though, since individuals' state of health was not at issue in this round, defense attorneys had no way to question any of these spectators to establish whether they were even members of the class.  Nor had they any better luck in objecting to what they said was inflammatory race-baiting on the stand by a plaintiff's expert, Dr. Alan Blum of Doctors Ought to Care, on the subject of ethnically targeted marketing (race wasn't supposed to be an issue in the case).

Might the jurors have been improperly influenced by ads they saw over the course of the trial?  Plaintiff's attorney Rosenblatt said yes, raising two rounds of objections because the defendants did not suspend advertising in South Florida markets during the year-long proceedings.  Were these, perhaps, "issue ads" promoting the companies' position on liability matters?  No; one was a product ad for the introduction of a new brand, Kool Natural Lights, while the other was a national anti-youth-smoking campaign (according to Rosenblatt, the buying of ads in 49 unnecessary states in order to reach his juror pool in one merely proved how "clever" a ploy it was). 

Circuit Judge Robert Kaye expressed concern about the Kool ad (it "raises one's eyebrows") -- mustn't have jurors being manipulated, after all.  Yet he dismissed defendant objections over an incendiary anti-tobacco-company ad that ran only in Florida -- and during the Super Bowl.  Conveniently purchased by the state government with its tobacco settlement booty, the ad depicted the testimony of cigarette executives being interrupted by a canned audience laugh track -- nothing anyone might find manipulative while a trial was in progress.  Several jurors admitted they were watching the game when the state ad came on.

In their earlier tobacco lawsuit, a secondhand smoke class action, Stanley Rosenblatt and wife Susan cut a deal with tobacco defendants which set aside $300 million for a newly formed charitable research group, $0.00 for the members of the class of flight attendants that the Rosenblatts were supposedly representing, and $46 million in legal fees for guess who.  A brief by Public Citizen's Alan Morrison charged that this "gargantuan" fee sum "appears to be grossly excessive" and said the alleged settlement "violates fundamental tenets of fairness and adequate representation".

July 7 -- A Civil Action II?  Trial lawyers had high hopes the John Travolta movie A Civil Action would ignite public anger about the way minute quantities of chemicals in the environment supposedly cause everything from childhood leukemia to depression and poor reading scores -- a near-limitless source of potential litigation, if true.  That didn't happen, partly because of thoughtful coverage in places like the New Yorker (Atul Gawande, "The Cancer-Cluster Myth", February 8, 1999, not online, summarized at Dartmouth's Chance News) and New York Times (Gina Kolata, "Probing Disease Clusters: Easier to Spot Than Prove, January 31, 1999, reprinted, U. Fla.).  "Over and over again," Kolata reported, scientists have come up empty handed in finding anything more than statistical artifacts in such clusters.  "Huge amounts of money" have gone into trying to link clusters to low-dose chemical exposure, says Harvard statistician James Robins, yet "nothing has come of it."

The Civil Action film turned in only a so-so box office performance, but Hollywood doesn't give up easily.  Now the L.A. Times is reporting (link now dead) that shooting has begun in Ventura on a Julia Roberts vehicle, provisionally titled "Erin Brockovich," about a real-life legal secretary (Roberts) working for a personal-injury lawyer (Albert Finney) who stumbles onto a case where children in a small town are sick and organizes a successful lawsuit against Pacific Gas & Electric, whose pollution is said to be responsible.  Almost guaranteeing attention to the project is that Roberts's salary for doing the film is $20 million, said to be a record for a female star. 

Your editor's critiques of A Civil Action in both its book and movie form, along with a lot of other material about the underlying case, are to be found at his Woburn Skeptic's Page.

July 6 -- What a recommendation.  Considering that not long ago practically everything about the O.J. Simpson case was big news, it's surprising how little discussion there's been of this spring's announcement that the famed non-murderer has agreed to do television ads for -- yes, it sounds like a bad joke, but it's true -- a lawyers' referral group.  (AP story in Fort Worth Star-Telegram/BlackVoices.com)  A spokesman for Justice Media, a 1-800-number marketing service, says the ads will be aimed at the minority community. 

Nicole Brown Simpson's sister Denise said she was "appalled" (WCCO), the California state bar said it wanted to look into the newly formed referral service (San Diego Daily Transcript), and the New York Daily News's Juan Gonzalez reported more details about David Lee, the attorney "friend" who persuaded Simpson to do the ads.  (A big New York City personal injury operator and protégé of the famed Harry Lipsig, Lee has been dogged by client complaints and just finished a two-year bar suspension). 

"The Simpson ad brings to mind the many reasons why so many lawyers objected for so many years to the idea of lawyers advertising on television," observes the Chicago Tribune's Clarence Page (link may be dead). "They were afraid of something just like this, that the most brazenly greedy and cynical face of the legal world would be broadcast daily through the media."

July 5 -- This time, bombing the taxpayer.  "Lawyers Plan Compensation Claims in Tanzania Bombing", reports MS/NBC (link now gone).  Simultaneous attacks last August on the American embassies in Nairobi, Kenya and Dar Es Salaam, Tanzania killed more than 200 people and injured more than 5,000.  Guess who soon arrived on a mission of mercy?  American lawyers, of course, including the California firms of John Burris; Sterns & Walker; and Herron & Herron, to claim negligence by the American government, which was of course the terrorists' target.  U.S. Embassy spokesperson Lisbeth Keefe in Dar es Salaam "expressed dismay" at plans for such a suit: ''We were victims of this bombing, too.'' 

What's next?  Probably a long wrangle in which the American trial lawyers, in their own inimitable display of patriotism, feed the African press a steady diet of news leads making the U.S. government look as bad as possible, leading to a settlement sticking it to American taxpayers.   In short, a second victory for the terrorists.  The best coverage ran in U.S. News in March, "Lawyers Mop Up After Embassy Bombing", which reported that Burris, an Oakland-based civil rights lawyer who's defended basketball bad guy Latrell Sprewell, stands to collect one-third of any settlement received by the more than 2,000 Kenyan clients he's signed up, though contingency fees for lawyers are illegal in Kenya as in most countries.  The secret is to file the suits in the U.S.

July 4 -- "A de facto fourth branch of government."  Today we celebrate the American founding with its blueprint for a government of separated and sharply limited powers.  Last month's fascinating American Lawyer piece on the origins of the firearms litigation reported that prominent trial lawyer Wendell Gauthier talked his colleagues into suing gunmakers, even though they weren't deep pockets, because he argued the suit "fit with Gauthier's notion of the plaintiffs bar as a de facto fourth branch of government, one that achieved regulation through litigation where legislation failed".  Yes, some litigators now see themselves as a de facto fourth branch of government -- one that pays a whole lot better than the other three, isn't subject to the disclosure rules and blind trusts we expect of Presidents, Senators and Chief Justices, does its unaccountable work behind the closed doors of settlement rooms from which the public is excluded, and, best of all, doesn't face those pesky distractions known as "elections".

Enjoy the Fourth anyway.

July 3 -- "Anti-democratic, wrong, a feel-good solution."  The Boston Phoenix favors gun control, but it says city firearms lawsuits are "an end run around the legislative process".  That puts it in line with the Boston Globe (January 19), the Seattle Times, the Spokane Spokesman-Review ("a cynical grab for undeserved money"), and other papers. 

UCLA law professor Eugene Volokh has just compiled a valuable list of knowledgeable law professors skeptical of the city gun cases and firearms torts generally.  This is another issue on which the people at Reason magazine have put together an excellent webguide ("Suing Gun Makers").  The National Center for Policy Analysis weighs in with a report, "Suing Gun Manufacturers: Hazardous to Our Health".  Gun enthusiasts have put up a number of sites of which one of the most informative is straightforwardly titled www.lawyersgunsandmoney.com. Guntruths.com's David Codrea expresses the sentiments of many gun owners about much-hyped "smart guns" and "child-proof locks". 

July 2 -- Never say you're sorry.  The breast implant fiasco has brought home the lesson that our legal system really is capable of extracting billions of dollars on a completely spurious scientific theory, bankrupting a respected company, and then not even saying "I'm sorry".  Reason magazine's new roundup is the best place to start for an overview of this disaster.  The text of the National Institute of Medicine report refuting the lawyers' claims is online. 

Charles Krauthammer, writing in the Washington Post ("Class-Action Extortion"; link now dead), quoted George Mason law professor David Bernstein: "It would have been nice to have had this [study] seven billion dollars ago."  Your editor made similar points when he reviewed Marcia Angell's powerful book, Science on Trial, in 1996.  Prof. Bernstein runs a highly informative Implant Litigation Home Page. The classic journalistic treatment is Joseph Nocera's 1995 Fortune article, "Fatal Litigation" (link now dead). 

One reason reform is difficult is that the trial lawyers are among the best organized political forces in the country.  The Civil Justice Association of California issues periodic reports on the millions that trial lawyers have funneled into campaigns in that state.

July 1, 1999 -- Overlawyered.com launched. (About this site...)

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