October 15 -- Reform
stirrings on public contingency fees. U.S.
Chamber of Commerce readies a push to curb governments' growing habit of
teaming up with private lawyers to sue businesses (tobacco,
guns,
lead paint) and share out the booty. "We think this is one of the
biggest threats facing American industry today," says Jim Wootton, executive
director of the Chamber's Institute
for Legal Reform. Its proposed reform package targets such abuses
as political corruption (states would be barred from hiring an outside
lawyer who "contributed more than $250 to the campaign of a public official")
and retroactivity (states couldn't enact legislation affecting their chances
of winning pending or contemplated suits).
Our editor's take on this issue appeared in his 1991 book
The
Litigation Explosion, excerpted at the time in Policy Review
(parts one,
two).
Briefly: contingency fees for representing governments are a corrupting
analogue to the widely deplored practices of "tax farming" (letting tax
collectors keep a share of the revenue they take in) and of hinging traffic
cops' bonuses on the volume of tickets they write. There's no historical
reason to permit such devices at all: lawyer's contingency fees developed
in this country as an exception arising from our lack of a loser-pays
rule (most other countries flatly ban them as unethical) and until not
long ago were carefully limited here to the cases where they were considered
a necessary evil, in particular cases where an impoverished client could
not afford hourly fees. That ruled out contingency representation
of governments. In addition, several court decisions suggest that
it violates due process to delegate public law enforcement functions to
persons financially interested in their outcomes, which is why we don't
allow D.A.s year-end bonuses based on their success in nailing defendants.
Interesting gossip tidbit from today's front-page New
York Times coverage of the reform push: Prof. Jack Coffee of Columbia
says he "would not be surprised if" public entities like cities signed
up with the trial lawyers' campaign to sue HMOs. (Barry Meier and Richard
A. Oppel, Jr., "States' Big Suits Against Industry Bring Battle on Contingency
Fees", New York Times, Oct. 15 -- full
story)
October 15 -- Dog
searches of junior high lockers. Yes, they're
doing random canine sniffs of twelve-year-olds' possessions in York, S.C.,
not on any focused suspicion but just on principle, maybe to remind kids
not to expect privacy: "It's just a further measure to enhance safety
at the schools," beams principal Ray Langdale (Tracy Smith, "K-9 debuts
in locker search at junior high", Rock Hill, S.C. Herald, Oct. 12).
October 15 -- A
mile wide and an inch deep. "The Environmental
Protection Agency has placed a portion of the Platte River in central
Nebraska on the 'Impaired Waters' list. Their reason: It gets too hot.
The source of the heat: the sun...." ("The Miller Pages" by Jeff
Miller, webzine, Sept. 30 -- full
column)
October 14 -- Covers
the earth with litigation. Trial lawyers'
long-prepared campaign against lead paint and pigment makers gets its liftoff
with the state of Rhode Island agreeing to serve as the first designated
statewide plaintiff, and doubtless not the last. Picked by attorney
general Sheldon Whitehouse to
represent the state on a contingency fee basis are Providence's Decof
& Grimm and Charleston, S.C.'s Ness, Motley, Loadholt, Richardson
& Poole, the latter of which is reaping somewhere between hundreds
of millions and billions of dollars (estimates vary) from its role in earlier
rounds of asbestos and tobacco litigation. Named as defendants are
the Lead Industries Association,
an industry trade group, along with eight manufacturers:
American
Cyanamid, Atlantic Richfield, duPont,
The O'Brien Corporation, Imperial Chemical Industries' Glidden
Co., NL Industries, SCM Chemicals,
and Sherwin-Williams.
Lawyers are also planning to enlist cities as plaintiffs in the manner
of the gun litigation, perhaps starting with Milwaukee, where a favorable
state law may help their cause. Baltimore asbestos/tobacco tycoon
Peter Angelos, who owns the baseball Orioles, has filed suit in Maryland;
and a suit against paint makers by New York City has also been chugging
along in the Gotham courts for years with little publicity or apparent
success.
Sources (most links now dead): Gillian Flynn, AP/Washington
Post,
Oct. 13; David Rising, "R. I. Sues Lead Paint Makers", Washington
Post,
Oct. 13; Yahoo/Reuters, "R.I. files suit against 8 lead paint makers",
Oct. 13; Whitehouse's Oct. 13 press release; companies' Oct. 13 press release;
Baltimore: "Lawyer Goes After Lead Paint Makers," AP/Washington
Post,
Sept. 21; Felicia Thomas-Lynn, "Pittsburgh lawyers pick Milwaukee for building
lead-paint suit," Milwaukee Journal-Sentinel, June
2; Greg Borowski, "City Moves Toward Suing Paint Industry", Milwaukee
Journal-Sentinel,
Oct.
6; and coverage on the industry site Paints
and Coatings.com.
October 14 -- Injunctive
injustice. Restraining orders in family
and divorce law can protect potential targets of domestic abuse, but
they can also wind up becoming the instrument of legalized violence themselves.
"Men have been jailed for sending their kids a Christmas card or returning
a child’s phone call," comments Detroit News columnist Cathy Young,
author of the recent Ceasefire!:
Why Women and Men Must Join Forces to Achieve True Equality.
"Harry Stewart, a lay minister who has never faced criminal charges of
assault, is serving a six-month jail term for violating a restraining order.
His crime? When bringing his 5-year-old son back to the mother after visitation,
he walked the boy to the apartment building and opened the front door.
The restraining order forbade him to exit his car near his ex-wife’s residence."
Procedural protections for targets are few, and judges
can often issue temporary restraining orders ex parte without either
the presence of the defendant or any allegation of actual violent behavior.
"In 1993, Elaine Epstein, then president of the Massachusetts Bar Association,
warned that '[in] many [divorce] cases, allegations of abuse are now used
for tactical advantage'" and that courts were handing down restraining
orders too readily. Some fathers'-rights activists in the Bay State
have recently launched a wide-ranging legal challenge to the state's family-court
practices. "Charges of domestic violence, by women or men, must be
taken seriously," writes Young. "But sensitivity to victims should
never turn into a presumption of guilt." ("Do 'protection orders'
actually violate civil rights?", Detroit News, reprinted Jewish
World Review Sept. 30 -- full
column)
October 14 -- 60,000
pages served on Overlawyered.com.
Traffic zips right along, both on the fast news days and the slow ... thanks
for your support!
October 13 -- "Doctor
sues insurer, claims sex addiction." "A former
Paducah gynecologist who claims he is a sex addict is suing his insurance
company to collect disability benefits because he can't practice his specialty,"
reports the Louisville Courier-Journal. Dr. Harold Crall voluntarily
gave up his practice after instances of inappropriate contact with patients
came to light; he now treats male patients at the Kentucky department of
corrections and is under orders from a state licensing board never to see
female patients without a chaperone. His lawsuit in federal court
says the Provident Life & Accident Insurance Co. should pay him disability
benefits because his sexual addiction prevents him from pursuing his chosen
profession. (Mark Schaver, Louisville Courier-Journal, Oct.
8)
October 13 -- "This
wretched lawsuit". The Clinton Administration's
new tobacco suit "is, without a doubt,
the most impressive legal document of our day," writes Jonathan Rauch in
National
Journal. "Examining this lawsuit is like watching a drunken driver
who, before crashing into a church during high Mass, also manages to shred
an ornamental garden, knock down two traffic lights, uproot a fire hydrant,
and clip a police station." To begin with, given its revenues from
cigarette taxes and its savings on pension benefits, "[t]he government
suffered no net damages. There is nothing to recover. Just the opposite."
Moreover, the government undertook the expenses of Medicare at a time when
it was well aware that smoking was a cause of disease. If it followed
the rules, the Clinton Justice Department would have no legal case at all;
so it's trying to pull what the Florida legislature pulled and rewrite
the rules retroactively to turn a losing case into a winner.
All of which leads up to the suit's "brassy" finale: its
attempt to redefine an unpopular interest group's issue advocacy as itself
unlawful, as in the 25 racketeering counts that are based simply on the
tobacco industry's issuance of press releases. The columnist generously
quotes the "entertaining and often startling Web site www.overlawyered.com"
(blush)
as having observed that "there can scarcely be a better way to silence
one side than to concoct a theory that exposes it to charges of 'racketeering'
for disseminating views its opponents consider erroneous." (see
our Sept. 23 commentary). In short, Rauch writes, by turning
the anti-tobacco crusade into an assault on freedom of political expression,
the administration "has given all Americans -- ... not excluding tobacco-bashers
-- a vital stake in the defeat of this wretched lawsuit." ("Bob Dole, Tobacco
Racketeer", Oct. 1 -- link now gone). For the columnist's 1993 book
Kindly
Inquisitors, which Kirkus called a "compelling defense of free speech
against its new enemies", click here.
October 13 -- Pokémon
cards update. Adorable Japanese monster
craze for the younger set, or illegal gambling racket ripe for class-action
lawsuits? An alert reader points out regarding our Oct.
1-3 commentary that while the Nintendo
company owns licensing rights to Pokémon characters, it's smaller
companies that actually make the collectible card packs that lawyers are
suing over (the lawsuits' theory is that since some cards are deemed more
valuable than others, buying a pack of the cards constitutes "gambling").
Each pack, this reader tells us, contains "precisely one 'rare' card."
For those who want to see what the full cast of characters looks like,
we found a copiously illustrated guide at the Topeka Capital-Journal's
site (link now dead).
"If Americans were this obsessed with suing everybody
in the 1950s, then the parents of millions of baby boomers would have taken
Topps (TOPP) and other baseball-card makers to court because kids spent
countless dollars trying to track down an elusive Mickey Mantle rookie
card," writes
Paul La Monica at Smart Money. Meanwhile the aggressive San
Diego class-action firm of Milberg, Weiss, Bershad, Hynes and Lerach, which
has indeed been filing lawsuits against Topps, the National Football League,
Major League Baseball and other defendants on theories that the sale of
trading cards to kids amounts to a gambling enterprise, ran into an embarrassment
Sept. 23 when it discovered that it had announced its intention to sue
one of its own clients, a company named 4Kids that is among the clients
in Milberg Weiss's little-known practice representing (as opposed to suing)
businesses. "If you think this makes me happy, it doesn't," said
Melvyn I. Weiss, New York-based co-managing partner of the firm; the firm
was obliged to withdraw from the action. (San Diego Union-Tribune
coverage: Bruce V. Bigelow, "Suit alleges Pokemon is illegal game", Sept.
21; Don Bauder, "Law firm discovers it sued own client in Pokemon case",
Sept. 24.) (our Oct. 1-3 commentary)
October 13 -- Bright
future in some areas of practice. Even his
own lawyer describes Paul Converse as a "pain in the neck." But should
he be awarded a license to practice law anyway? The Nebraska State
Bar Commission says no, citing his consistently "abusive, disruptive, hostile,
intemperate, intimidating, irresponsible, threatening or turbulent" behavior
in school. Converse's lawyer says his client's civil rights are being
violated and has appealed to the state's high court (Kevin O'Hanlon, "Temperament
Bars Man From Law Test", AP/Washington Post, Sept. 29; Aileen O'Connell,
"Setting the Bar High", Newsweek, Sept. 30).
October 12 -- Proud
history to end? Sam Colt invented the revolver,
but his namesake Colt's Manufacturing
Company is retreating from much of its business of selling handguns
to consumers. "It's extremely painful when you have to withdraw from
a business for irrational reasons," said an executive with the company.
The only municipal lawsuit to reach the merits, Cincinnati's, was soundly
rejected by the judge last week (see Oct. 8 commentary,
below), but given America's lack of a loser-pays
rule the process itself becomes the punishment: the May 17 New Yorker
cites
estimates that defense costs to the industry as a whole in the suits
could soon run a million dollars a day.
Quoted in APB News, spokeslawyer John Coale denied
that the suits would shut down the handgun industry. "It can't be
done, and it's not a motive, because as long as lawful citizens want to
buy handguns, and as long as the market's there, there's going to be someone
filling it," he said. But surely Coale is aware of the thorough
suppression by our litigation system of other products that remain lawful.
It's completely lawful to sell the morning sickness drug Bendectin,
for example, and many consumers would be glad to buy it, but no company
is willing to produce it for U.S. sale because trial lawyers have been
too successful in organizing lawsuits against it.
Upwards of a hundred workers are expected to be laid off
at Colt's Hartford-area facilities. The company will continue to
sell to the police and military, perhaps foreshadowing future arrangements
in which only government agencies will be lawfully allowed to obtain small
arms. ("Colt exiting consumer handgun business -- Newsweek", CNN/Reuters,
Oct. 10; Hans H. Chen, "Colt's Handgun Plan Heats Up Debate", APB News,
Oct.
11). (Note: the Colt company took issue with some aspects of
the Newsweek report. It said its dropping of various handgun
lines did not constitute an exit from the consumer market, gave a number
for layoffs of 120-200 rather than 300, as first reported, and suggested
that the lines would have been dropped at some point even without the litigation
pressure. See our Nov. 18-19
commentary, as well as Nov. 9)
October 12 -- Property
owners obliged to host rattlesnakes. "A
New York court recently ruled that New York's endangered
species law requires private landowners to host threatened rattlesnakes
on their property." Family-owned Sour Mountain Realty had erected
a "snake-proof" fence with the rattlers on one side of it and its mine
on the other, but the state Department of Environmental Conservation pointed
to a provision of New York law that prohibits "disturbing, harrying, or
worrying" an endangered species and said that the owners were violating
that provision by prevent the creatures from traversing the land freely.
A court agreed and ordered Sour Mountain to tear down the fence, thus giving
the rattlers a sporting chance to "disturb, harry or worry" the humans
who'd been on the other side of it. An appeal is pending (Pacific
Legal Foundation, Key Cases, Environmental Law Practice Group)
October 12 -- After
the HMO barbecue. Our favorite syndicated
columnist explains why last week's House passage of a bill promoting lawsuits
over denial of coverage was a really bad idea. "Managed care arose
because we can't have it all, much as we would like to." Now, thanks
to the shortsightedness of America's organized medical profession, we're
back on track toward an eventual federal takeover of the area. (Steve
Chapman, "The Unadvertised Wrongs of 'Patients' Rights'", Chicago Tribune,
Oct. 10)
October 12 -- Down
the censorship-by-lawsuit road. First Amendment
specialist Paul McMasters decries the current courtroom push to assign
liability to entertainment companies for acts of violence committed by
their viewers or readers. "The idea that we can blame books, movies
and other media for crime turns the courtroom search for justice into a
search for blame and deep pockets....Down that road lies cultural homogeneity,
social and intellectual stagnation, and the possibility that we will be
not only living with the tyranny of the majority but the tyranny of the
aggrieved." ("Will we trade our freedom for civility?", Freedom Forum,
Sept. 27)
October 12 -- Free-Market.Net
"Freedom Page of the Week". We're proud
to be named this week's honoree in Free-Market.Net's
"Freedom Page of the Week" series. Editor Eric Johnson calls Overlawyered.com
"thorough, well-organized, and, if you are capable of enjoying an occasional
laugh at the ridiculousness of some lawsuits, very entertaining....truly
invaluable to anyone interested in the absurdities of our legal system".
In turn, we highly recommend Free-Market.Net, a browser's delight of libertarian
resources on almost every conceivable policy topic as well as a one-stop
jumping-off point to reach just about any liberty-oriented website you
might be looking for. (full
award text)
October 11 -- My
dear old tobacco-fee friends. Among the
first dozen state attorney generals to jump on the tobacco-Medicaid
suit bandwagon -- and the very first Republican -- was Kansas's Carla Stovall.
To represent the state, Stovall hired three law firms, two from out-of-state
and one from within. The two out-of-state firms were Ness, Motley
of Charleston, S.C. and Scruggs, Millette of Pascagoula, Miss., both major
players in the suit representing a large number of other states.
And the lucky Kansas firm selected as in-state counsel, entitled to share
with the others in a contingency fee amounting to 25 percent of the state's
(eventual estimated $1.5 billion-plus) haul? Why, that firm just
happened to be Entz & Chanay of Topeka, Attorney General Stovall's
own former law firm. Stovall has insisted that her old firm was the
only one willing to take the case on the terms offered. It's still
unclear what total fees the three firms will reap from the Kansas work,
but the sum very likely will exceed the $20 million that the state legislature
vainly (after the ink was dry on the contingency contract) attempted to
decree as a fee cap for the lawyers. This spring, Stovall stared
down Rep. Tony Powell (R-Wichita), chairman of an appropriations panel
in the Kansas House, who'd sought to impose competitive-bidding rules as
well as a requirement of lawmaker approval on the state's future letting
of outside law-firm contracts. (Topeka Capital-Journal coverage:
Roger Myers, "Fees likely to exceed cap", Jan.
22; "State will be rewarded for early entry to suit", March
12; Jim McLean, "Battle between Stovall, critic a draw", March
13) (see also commentaries on New Jersey,
Wisconsin
tobacco fees)
October 11 -- Free
Kennewick Man! The Native American Graves
Protection and Repatriation Act (NAGPRA) is "a 1990 law intending to protect
Indian burial sites and help tribes reclaim the remains of ancestors stored
in museums". But the law has emerged as a serious threat to the pursuit
of pre-Columbian archeological knowledge (as well as an infringement of
property
owners' rights). Symbolic is the fate of 9,000-year-old Kennewick
Man, discovered in 1996 but soon seized by the U.S. Army Corps of Engineers
on behalf of Indian claimants -- even though, astonishingly, the skeleton
appeared to be of Caucasian descent. "If [the battle over similar
relics] continues much longer," writes John J. Miller, "irreplaceable evidence
on the prehistoric settlement of the Americas will go missing, destroyed
by misguided public policy and the refusal to confront a troubling alliance
between multiculturalism and religious fundamentalism." (Intellectual
Capital, Sept. 23)
October 11 -- Are
you sure you want to delete "Microsoft"?
"Welcome to the postmodern world of high-tech antitrust where big is once
again bad, lofty profit margins are a wakeup call to government regulators,
executives are brought to heel for aggressively worded e-mails, pricing
too high is monopolistic, pricing too low is predatory, propping up politically
wired competitors is the surreptitious aim, bundling products that consumers
want is illegal, and successful companies are rewarded by dismemberment."
The Cato Institute's Robert Levy blasts the Microsoft suit ("Microsoft
Redux: Anatomy of a Baseless Lawsuit", Cato Policy Analysis, Sept. 30 --
full
paper).
October 11 -- State
supreme courts vs. tort reform. J.V. Schwan,
for the Citizens for a Sound Economy Foundation, decries the quiet evisceration
of no fewer than 90 tort reform statutes by state supreme courts, most
recently Ohio's, which refuse to acknowledge
their legislatures' role as makers of the civil law. Whatever happened
to the separation of powers? ("Rapid-Fire Assault on the Separation of
Powers," Citizens for a Sound Economy Foundation Capitol Comment #251,
Sept. 9)
October 9-10 --
The Yellow Pages indicator. "For a number
of years I have been using a simple test to gauge the health of local culture
and economy, as well as that of the country in general. I grab the yellow
pages and tally up the number of pages advertising
attorneys and compare them with the number and types of ads for doctors,
engineers and insurance companies. I recently counted 62 pages of
attorneys in my Tampa area, with 20 of the pages being full page, multi-color
ads that are exorbitantly expensive to run....When there are nearly twice
as many lawyers and legal firms than doctors and engineers combined, this
is not a good sign." ("Please Don't Feed the Lawyers," Angry White
Male, Sept. 1999)
October 9-10 --
Piggyback suit not entitled to piggybank contents.
Last month the Second Circuit U.S. Court of Appeals reversed an award of
$1 million in legal fees to class action
lawyers who had sued Texaco in a "piggyback" shareholder action over
its involvement in charges
of racial discrimination. Writing for a unanimous panel, Senior
Judge Roger Miner said the proposed settlement involved "therapeutic 'benefits'
that can only be characterized as illusory" and that plaintiff's counsel,
which included the firm of Milberg Weiss Bershad Hynes & Lerach and
several other law firms, had "in an effort to justify an award of fees"
emphasized the extreme long-shot nature of the contentions they had made
on behalf of shareholders, but had succeeded only in raising the question
of whether those contentions "had no chance of success and, accordingly,
were made for the improper purpose of early settlement and the allowance
of substantial counsel fees." (Mark Hamblett, "$1 Million Fee Award
Reversed", New York Law Journal, Sept. 15)
October 9-10 --
Grounds for suspicion. Reasons
the Drug Enforcement Administration has given in court for targeting individuals,
according to one published list:
Arrived in the afternoon
Was one of the first to deplane
Was one of the last to deplane
Deplaned in the middle
Purchased ticket at airport
Made reservation on short notice
Bought coach ticket
Bought first class ticket
Used one-way ticket
Used round-trip ticket
Carried no luggage
Carried brand-new luggage
Carried a small bag
Carried a medium-sized bag
Carried two bulky garment bags
Carried two heavy suitcases
Carried four pieces of luggage
Dissociated self from luggage
Traveled alone
Traveled with a companion
Acted too nervous
Acted too calm
Walked quickly through the airport
Walked slowly through the airport
Walked aimlessly through the airport
Suspect was Hispanic
Suspect was black female.
-- Sam Smith's Progressive
Review, July 30, quoting David Cole in Insight. We've
been unable to track down Cole's article or any earlier appearances of
the list; further clues on the list's provenance and authenticity are welcome.
October 8 -- Victory
in Cincinnati. The first of the municipal
gun
lawsuits to reach a decision on the merits results in a sweeping victory
for gun manufacturers and a stinging rebuke to the city of Cincinnati,
which had sued the makers along with three trade associations and a distributor.
"The Court finds as a matter of law that the risks associated with the
use of a firearm are open and obvious and matters of common knowledge,"
writes Hamilton County Common Pleas Judge Robert Ruehlman in a five-page
opinion dismissing the city's claims in their entirety. “[They] cannot
be a basis for fraud or negligent misrepresentation” or for failure to
warn. Nor does the theory of nuisance apply since gun makers and
distributors "have no ability to control the misconduct of [the responsible]
third parties". Moreover, the city's complaint had attempted to "aggregate
anonymous claims with no specificity whatsoever," and was an attempt to
pursue essentially political goals without the need to consult voter majorities:
"In view of this Court, the City's complaint is an improper attempt to
have this Court substitute its judgment for that of the Legislature, something
which this Court is neither inclined nor empowered to do." Judge
Ruehlman dismissed the lawsuit "with prejudice," which means that if the
city loses an expected appeal it will be barred from filing a new or amended
suit. (Kimball Perry, "Judge tosses out city's gun suit", Cincinnati Post,
Oct. 7; Dan Horn and Phillip Pina, "Judge dismisses city's gun lawsuit",
Cincinnati Enquirer,
Oct.
8; John Nolan, "Ohio judge dismisses Cincinnati's lawsuit against gun
industry", AP/Akron Beacon Journal, Oct. 7).
October 8 -- Demolition
derby for consumer budgets. Higher car insurance
premiums are on the way, warns Consumer Federation of America automotive
expert Jack Gillis, because of an Illinois jury's decision on Monday that
it was improper for State Farm, the nation's largest auto insurer, to purchase
generic rather than original-brand replacement parts when reimbursing crash
repairs. While the insurer plans to appeal the decision, it has in
the mean time changed its policy and agreed to buy original-maker parts,
which are already more expensive than generics and are likely to become
more so now that GM, Toyota and other original-brand makers can contemplate
the prospect of a legally captive market obliged to pay virtually any price
they care to charge for replacement hoods and other items. The jury
voted $456 million in supposed damages, a number built up from various
accounting fictions; additional damages based on purported fraud are yet
to be decided. Because State Farm is a mutual enterprise that periodically
returns surpluses to customers in the form of dividends, eventual success
on appeal for the class action would
mostly shift money around among policyholders' pockets (minus big fees
for lawyers), for the sake of driving up the cost structure of providing
coverage.
Various consumer groups often at odds with the auto insurance
industry took State Farm's side in the case, to no avail. The use
of generic parts has been standard practice among auto insurers; Ann Spragens
of the Alliance of American Insurers found it "particularly objectionable"
that the jury was allowed to second-guess a practice that "state insurance
regulators have examined time and again and have permitted to be followed".
Though filed in state court, the class action presumed to set policy nationwide,
and tort reformers said the case illustrated the need to move nationwide
class actions into federal court, as a pending bill in Congress would do.
("No replacement parts for State Farm", AP/Washington Post, Oct.
8; Keith Bradsher, "Insurer Halts Disputed Plan for Coverage of Auto Repairs",
New York Times, Oct. 8; Michael Pearson, "State Farm Verdict Angers
Industry", AP/Washington Post, Oct. 5.) Update Aug.
19, 2005: Ill. high court unanimously decertifies class and nullifies
$1.2 billion award.
October 8 -- White-knuckle
lotto. Yesterday a federal jury awarded
13 American Airlines passengers a total of $2.25 million for psychological
trauma suffered when a 1995 flight from New York to Los Angeles ran into
a thunderstorm over Minnesota, experienced 28 seconds of severe turbulence
and had to make an emergency landing in Chicago. The award appears
to be the biggest yet for emotional distress in airliner
incidents; none of the passengers sued for serious personal injuries.
Those onboard included movie director Steven Spielberg's sister Nancy,
who with her two small children was awarded a collective $540,000; Louis
Weiss, the retired chairman of the William Morris Agency, who with his
wife was voted a collective $300,000; and Garry Bonner of Hackensack, N.J.,
who co-wrote the song "Happy Together" for the Turtles. (Gail Appleson,
"Spielberg's sister gets damages from airline", Reuters/Excite, Oct. 7,
link now dead; Benjamin Weiser, "Airline Ruled Liable for Distress on Turbulent
Flight", New York Times, Oct. 8, link now dead).
October 8 -- Star
hunt. Clever way for Southern California
attorneys to fulfill their pro bono publico charitable obligation:
donate free assistance to screenwriters or musicians looking for their
first sale or deal. That way, once the clients are established, the
lawyers come into a lucrative future vein of paid work. Should
this sort of thing really be called pro bono at all? (Di Mari
Ricker, "When Pro Bono Is More Like an Investment", California Law Week,
Sept. 27)
October 7 -- Yes,
it is personal. "I'M
AN ENGINEER.
If you believe in stereotypes, I'm a mild-mannered egghead with a pocket
protector. But if you believe the lawyers, I'm a killer." Despite
the fiction that liability suits are only aimed at faceless companies and
enable society to spread risk, etc., a real-life community of individual
design professionals does in fact feel a keen sense of personal accusation
-- and of injustice -- when juries are fed dubious charges of auto
safety defects (Quent Augsperger, "Lawyers declare war on automotive
engineers", Knight-Ridder/ Tribune/ Detroit Free Press, Oct. 5 --
full
column).
October 7 -- Kansas
cops seize $18 grand; no crime charged.
The Topeka Capital-Journal reports that county sheriffs outside
Emporia found and seized $18,400 after searching and having a dog sniff
a four-door Ford Tempo that was traveling on Interstate 35. No arrests
were made, and the two occupants of the car, who hail from St. Louis and
El Paso, Tex., have not been charged with any offense. Forfeiture
law allows law enforcers to seize money on suspicion that it's linked to
crime, and the owners must then sue to get it back. The officer who
made the stop found the money in a hidden compartment in the vehicle, a
circumstance he seemed to think constituted a crime in itself, but an attorney
for the county says he isn't aware of any law against hidden compartments.
("Lyon County Sheriff's Department seizes more than $18,400 on I-35", CJ
Online, Aug.
21; Jon E. Dougherty, "Is possession of cash a crime?", WorldNetDaily,
Sept. 14).
October 7 -- Family
drops Sea World suit. The family of Daniel
Dukes has voluntarily dropped its lawsuit against Sea World over Dukes'
death from hypothermia and drowning while apparently taking an unauthorized
dip with the largest killer whale in captivity (see
Sept. 21 commentary). No explanation was forthcoming, but
a park spokesman said a settlement had not been paid. ("Killer Whale
Lawsuit Is Dropped", Excite/Reuters, Oct. 5)
October 7 -- Israeli
court rejects cigarette reimbursement
suit. "Tel Aviv District Court Judge Adi Azar
ridiculed the suit, saying that accepting the claim would make it impossible
to sell anything but lettuce and tomatoes in Israel, the local army radio
reported." Could we bring that judge over here, please? ("Health
Fund Loses Case Against Cigarette Manufacturer", AP/Dow Jones, Sept. 15
-- full story)
October 7 -- Copyright
and conscience. Goodbye to the Dysfunctional
Family Circus, a four-year-old parody
site which posted artwork panels of the familiar "Family Circus" cartoon
and invited readers to submit their own new (often rude and tasteless)
captions for them. Lawyers for King Features, which owns rights to
the cartoon, lowered the boom last month, leading to coverage in the Arizona
Republic, AP/CBS (links now dead), Wired
News, Phoenix New Times,
Editor & Publisher, and, among webzines, the ineffably named
HPOO: Healing Power of Obnoxiousness. Most recent development:
though advised by some that copyright law's liberal parody exemption might
afford him some opening for a defense, webmaster Greg Galcik decided to
fold after he spoke on the phone for an hour and a half with Bil Keane,
cartoonist of the real-life "Family Circus", heard firsthand that the parody
had made Keane feel really bad about the use to which his characters had
been put, and decided he hadn't the heart to continue.
October 7 -- Knock
it off with that smile. "There's nothing
funny about this injury," said attorney Mark Daane, who's representing
University of Michigan social work professor Susan McDonough in her lawsuit
against Celebrity Cruises. The suit contends that if the cruise line
had taken better care, a passenger on an upper deck would not have dropped
a cumbersome Coco Loco specialty drink over the railing, thence to descend
on Ms. McDonough's head. The drink is served in a hollowed-out coconut
and comes with a little parasol. In August a federal judge declined
to dismiss the lawsuit, which seeks over $2 million for brain trauma.
We told you to cut it out with the smile already (Frances A. McMorris,
"A Loaded Coconut Falls Off Deck, Landing One Cruise Line in Court", Wall
Street Journal, Sept. 13 -- requires
online subscription).
October 5-6 --
"Big guns". October column
in Reason by Overlawyered.com's editor explores the origins
of the municipal firearms litigation (the first point to get clear: it
wasn't the mayors who dreamed it up.) Valuable accounts that appeared
in the New Yorker and The American Lawyer over the summer
establish the close links in personnel and technique between the anti-gun
jihad and the earlier tobacco heist,
including key methods of manipulating press coverage and enlisting the
help of friendly figures in government (full
column). Also in the same excellent magazine, the online
"Breaking Issues" series has come out with a new installment covering the
federal tobacco suit (Sept.
23).
October 5-6 --
State of legal ethics. Less than three months
to go before entries close, and the law firm of Schwartzapfel, Novick,
Truhowsky & Marcus P.C. of Manhattan and Huntington, L.I. holds the
lead in the race for most reprehensible law-firm
ad of 1999. Its prominent full-page ad near the front of the
Sept. 20, 1999 issue of New York magazine beckons unwary readers
into the heartbreaking, destructive meltdown that is will-contest litigation.
Printed against a background picture of a serene blue sky (or are those
storm clouds?) the copy reads: "Bring back to life a lost inheritance.
If you believe that a will is invalid, that your rights in an estate or
trust have been impaired or need advice to explain your rights, please
call us today at [number]." Won't enough warfare go on among former
loved ones without giving it artificial encouragement? Shame on New
York for printing this one.
October 5-6 --
Chief cloud-on-title. Speaking of destructive
forms of litigation, redundant though that phrase may be, are there many
kinds that are worse than the revived assertion of old Indian land claims
in long-settled communities? In upstate New York, Indian and non-Indian
communities that have lived together peaceably for generations are now
a-boil with rage, in what some locals (no doubt hyperbolically) call a
mini-Balkans or Northern Ireland in the making. Repose and adverse
possession count for surprisingly little in the eyes of a legal system
that seems to welcome each new proposal for the dispossession of generations'
worth of innocent Euro-descendant inheritors. Old friendships have
broken up, petty vandalism and threats are escalating, and -- for all our
legal establishment's fine language about how litigation provides an alternative
to conflict in the streets -- the lawsuits are clearly exacerbating social
conflict, not sublimating it. (Hart Seely and Michelle Breidenbach,
"CNY communities split over land claims", Syracuse Online, Sept.
26) (see also Oct. 27,
Feb.
1 commentaries)
October 5-6 --
FCC as Don Corleone. "They are engaged in
shakedowns, extortions, and things that fall outside the formal regulatory
process" That's strong language to use about the Federal Communications
Commission, the often-considered-dull regulatory agency in charge of broadcast,
telephone, cable, and the Internet. It's even stronger language considering
that it comes from one of the FCC's own commissioners, Harold Furchtgott-Roth,
the only economist among the panel's five members. Speaking at a
Wyoming conference, Mr. Furchtgott-Roth explained that the commission exploits
its discretion to withhold permission for mergers and other actions in
order to levy unrelated demands that service be extended to politically
favored communities. (Declan McCullagh, "The Seedy Side of the FCC", Wired
News, Sept. 28)
October 5-6 --
This side of parodies. It's always a challenge
to come up with extreme fictional accounts of litigation that outrun the
extreme real-life accounts. The online Hittman Chronicle visualizes
the results of a legal action filed by a protagonist who was "in the middle
of a three day drinking binge when he tried to clean out his ear with an
ice pick". Editor Dave Hitt says it was inspired by a story on this
page... ("Pick Your Brain", August -- full
parody)
October 4 -- Brooklyn
gunman shoots three, is awarded $41 m. A
jury last week awarded $41.2 million to Jason Rodriguez in his excessive-force
suit against New York City. Rodriguez was shot and paralyzed by off-duty
police officer David Dugan in an incident in which Rodriguez had been "armed
with a gun and firing at a number of individuals," said Police Department
spokeswoman Marilyn Mode. Rodriguez's lawyer acknowledged that his
client had just shot three persons at the time of his apprehension but
said the three had assaulted him and that he had tried to surrender.
Rodriguez later pleaded guilty to charges of reckless endangerment over
the shootout. A New York Post editorial calls it "appalling"
that he "should end up profiting from the aftermath of an incident in which
he shot three people". (Bill Hutchinson, "City Loses $41 M Suit to
Shooter", New York Daily News, Oct. 1; "The Growing Need for Tort
Reform", editorial, New York Post, Oct. 2). Compare New York's
"mugger millionaire"
case, in which Bernard McCummings was awarded $4.8 million after he committed
a mugging on the subway and was shot by police trying to flee.
October 4 -- Not
so high off the hog. Will big livestock
operations join the list of targets of mass tort actions? Amid publicity
about the baneful environmental effects
of large-scale hog farming, 108 Missouri neighbors of a big Continental
Grain swine operation joined in a suit charging that it had inflicted on
them "horrendous odor, infestations of flies, water contamination and medical
problems" up to and including strokes and a heart attack.
Their lawyers saw fit to file the action 200 miles away in downtown St.
Louis, a distinctly non-agricultural (but pro-plaintiff) jurisdiction.
After a three-and-a-half-month trial, the jury there returned an award
of $5.2 million -- a substantial sum, but far less than the neighbors said
was due them.
Writing in Feedstuffs magazine, attorney Richard Cornfeld of
Thompson Coburn, who handled Continental's defense, outlines some of the
reasons the case did not prove as strong as it might have sounded.
While residents said they were fearful the farms had tainted their water
supply, most hadn't bothered to order simple $15 tests from the state,
and when they had the tests had come back negative. And though
Continental admitted there was sometimes an odor problem, neighbors who
did not sue testified that they rarely smelled it and that it wasn't severe.
Neighbors came to hunt and fish amid the hog farms, and some of the plaintiffs
continued to buy more land near the farms, build decks onto their homes
and host large social events despite the allegedly unbearable odor.
"One woman opened a restaurant with outdoor dining near some of the plaintiffs'
homes." Continental requested that the court allow the jury to take
an actual trip to the farms, and jurors themselves asked to do so during
deliberations, but the plaintiff's lawyers opposed the idea and the judge
said no. Frustratingly for Continental, it was not allowed to inform
the jury that it had favored a visit and its opponents had not. (Richard
S. Cornfeld, "Case serves as good example of shifting legal landscape,"
Feedstuffs,
Aug. 9)
October 4 -- "Judge
who slept on job faces new allegations."
This one may belong in the disability- accommodation category, since family-law
judge Gary P. Ryan of Orange County, Calif. Superior Court had "blamed
his courtroom slumber on a breathing disorder that disrupted his sleep
at night". However, matters took a turn for the worse last month
when the judge was accused of dozing off in court again despite his insistence
that his medical problem had been taken care of, and also was arrested
by Newport Beach police on suspicion of drunken driving. (Stuart Pfeifer,
Orange County Register, Sept. 26)
October 1-3 --
Pokémon-card class actions -- For those
who haven't been paying attention to the worlds of either nine-year-olds
or
class action lawyers, here's the situation. Pokémon ("pocket
monsters") are lovable characters developed in Japan that have become a
craze among kids. Nintendo sells packs of trading cards that feature
the characters, but some of the cards are much rarer than others.
Kids who want to collect the whole set wheedle their parents for money
so they can buy lots of packs in search of the rare ones, which are sometimes
resold for sums well in excess of their original cost.
Enter the class-action
lawyers, who've now filed numerous suits against Nintendo and other trading-card
makers. "You pay to play ... there is the element of chance, and
you've got a prize," said attorney Neil Moritt of Garden City, N.Y. "It's
gambling." Moritt represents the parents of two Long Island nine-year-olds
who, per the New York Post, "say they were forced to empty their
piggy banks" to collect the cards (the use of the word "forced" here might
seem Pickwickian, but maybe the boys' mothers are just bringing them up
to talk like good litigants.) On ABC's Good Morning America, another
plaintiff's lawyer said he sued on behalf of his son after noticing that
the lad's collecting had reached the point where "it was no longer fun".
Interviewer Charles Gibson raises the CrackerJack analogy (aren't these
really like the prizes found in CrackerJack boxes?). And an editor
with Parents magazine says it would be "great" if the law could
force Nintendo to sell complete sets at a modest price. Hmmm -- would
she favor having the law force her to keep back issues of her magazine
in print, for those who want to assemble full sets? (Kieran Crowley,
"Lawsuit Slams Pokémon as bad bet for addicted kids", New York Post;
Good Morning America transcript, "Poké-Mania lawsuit", Sept. 27)
(Oct. 13 sequel)
October 1-3 --
Don't call us professionals! The Fair Labor Standards
Act exempts many sorts of creative, professional or executive jobs from
its overtime provisions. But suits demanding retroactive overtime,
claiming jobs were misclassified (though their occupants may have made
no objection at the time) have increasingly become part of the routine
arsenal of employment litigation.
That means disgruntled workers are put in the peculiar position of having
to bad-mouth the level of creativity they've exercised in their positions,
as with these two Atlanta TV news reporters who now say, for purposes of
litigation at least, that their work on screen amounted to little more
than assembly-line hackery (Ben Schmitt, "TV News -- Factory Work or a
Profession?", Fulton County Daily Report, June 4)
October 1-3 --
"Boardwalk bonanza". Hard-hitting exposé
by Tim O'Brien in New Jersey Law Journal of the tobacco-fee situation
in the Garden State, where the lawyers representing the state in the Medicaid
settlement are in for $350 million in fees. "Remarkably,"
writes O'Brien, "five of [six] had little or no tobacco
litigation or mass tort experience. The one who did was bounced off
the case on a conflict for much of the time. Moreover, most of the
substantive legal work, including court arguments, was done
by a South Carolina lawyer who brought up her own team....Finally, none
of the local lawyers had anything to do with the national settlement talks
that ultimately awarded New Jersey $7.6 billion over 25 years."
The consortium set up to handle the suits included five
former presidents of ATLA-NJ, the state trial lawyers' association, and
was hatched in a "brainstorm sitting around the convention center having
a couple of drinks". At first it heralded the role of a nonprofit
foundation ostensibly set up for charitable and public-interest purposes,
"[b]ut the foundation's role was later quietly eliminated, if it ever existed."
Meanwhile, nearly $100,000 in campaign contributions were flowing in a
six-month period from ATLA-NJ's PAC to Republican legislators, including
$4,350 in checks written the day after the lawyers got the contract.
"Sometimes you're just in the right place at the right
time," says one rival. "Now they're sitting in Fat City." Don't
miss this one -- and ask your newspaper whether its reporting on tobacco
fees has been as diligent. (Tim O'Brien, "A $350M Boardwalk Bonanza",
New
Jersey Law Journal, Sept. 27)
