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| ARCHIVE -- SEPT. 1999
(I) |
September 15 --
Got to love us. We noticed yesterday morning
that this site's tracking counters had begun ticking away like mad and
that a large percentage of our new visitors were from domains at official
U.S. government agencies. For a moment we wondered whether we were
under some sort of surveillance. Then to our relief and elation we
discovered we'd been written up in the Washington Post, specifically
in Richard Morin's and Claudia Deane's column "The Ideas Industry", which
covers the policy world. "Here's an Internet address you've got to love:
http://www.overlawyered.com,
a Web site recently launched by Manhattan Institute senior fellow Walter
Olson. Olson writes that he launched the site to document 'the need for
reform of the American civil justice system.' The page is updated regularly
with legal horror stories, data links and such." (link now dead).
September 15 --
"A few rhinestones shy of a full tiara".
Organizers of the Miss America pageant backtrack on their plans to drop
questions in which contestants are asked to certify that they've never
been married or pregnant. The idea of the change "was to bring the
contestant contract into compliance with New Jersey laws against discrimination",
CEO Robert Beck said in an affidavit filed in connection with a legal action
by state pageant directors challenging the new rules. Between remodeling
the Boy Scouts and cases like this, New Jersey discrimination law certainly
keeps itself busy. (Yahoo/AP, link now dead). In the
St. Petersburg (Fla.) Times, columnist Robyn Blumner says pageant
officials, in their struggle to disguise a good-looks contest as an exercise
in diversity awareness and feminist empowerment, "must be a few rhinestones
shy of a full tiara". (full
column)
September 15 --
Perps got away, but equity was served. Employment
lawyers are watching the fate of Lanning v. SEPTA, a case
in which a three-judge panel of the Third Circuit ruled against the Philadelphia
transit authority for having had the temerity to prefer transit-cop recruits
who could run far enough and fast enough (1.5 miles in 12 minutes) to stand
a decent chance of nabbing a fleeing suspect before getting tuckered out.
A higher percentage of men than of women passed the test, not surprisingly
since the average man significantly outdistances the average woman on leg
strength, aerobic capacity, and suchlike variables. But that meant
the test had "disparate impact" and was legally suspect. By a two-to-one
vote, the appeals panel concluded that federal antibias law precludes SEPTA
from maintaining anything more than "minimum requirements". The transit
agency is petitioning the U.S. Supreme Court for certiorari. (Dan
Seligman, "Lowering the Bar", Forbes, Sept.
20) (& updates Oct.
5-7, 2001: federal government drops support for suit; Oct.
25-27, 2002: Third Circuit panel rules 2-1 for SEPTA).
September 15 --
"Teach but don't touch". "Adults working
with children are warned by superiors worried about lawsuits against showing
too much affection toward their young charges. 'Teach but don't touch,'
a lawyer for the National Education Association told the membership in
1995. 'If you hug a child, even a child who is hurt or crying, I
will break your arms and legs...If kids need help in the bathroom, take
an aide with you, or let them go on the floor.' Trained as if they
were preparing to enter the opposing counsel's meeting room, camp counselors
have become 'less relaxed around children,' according to one camp consultant,
even though youngsters 'come to camp with more emotional baggage than they
did just five years ago." -- from pp. 15-16 of City Journal
contributing editor Kay Hymowitz's newly published book, "Ready
or Not: Why Treating Children as Small Adults Endangers Their Future --
And Ours" (Free Press). That business about "let them go on the
floor" was a joke, we think. And that business about breaking your
arms and legs. We think.
September 14 --
Blackboard jungle. The town of Ann Arbor,
Mich. (population 109,000) is facing a calamitous $30 million in legal
liability, a sum amounting to $1,100 for every family of four within its
borders. What did its taxpaying citizens do to deserve such a costly
chastisement at the hands of the civil law? Did they invade and pillage
neighboring Saline, putting 200 homes to the torch? Did they bid
defiance to Michigan State on the day of the big game by vandalizing 30,000
cars belonging to MSU fans? No; through their elected representatives,
they employed substitute teachers from 1990 through last year on a written
understanding that they wouldn't be entitled to promotion to full-time
status. A court ruled that the agreements to waive promotion were
invalid, class-action lawyers did their thing, and now the back pay bills
are coming due, payable to subs who might have made a career in the Ann
Arbor schools had the policy been otherwise: $265,000 and $177,000 for
two Ypsilanti residents, $135,000, $128,000, and $104,000 for former substitute
teachers who now live in Kansas City, Cincinnati and Nevada, amid a long
list of others. Now the town's suing its former law firm for malpractice,
ensuring that yet more wealth will be thrown on the blame-seeking pyre.
(Paul Rioux, "School board OKs malpractice suit", Ann Arbor News/Michigan
Live, Sept. 9 (no longer online))(& letter
to the editor from lawyer who brought the case).
September 14 --
Gunmaker bankruptcies: three, and counting.
The first wave of business casualties consists of Southern California makers
of inexpensive handguns: Sundance Industries of Valencia has joined Lorcin
Engineering of Mira Loma and Davis Industries of Chino in seeking protection
from creditors. According to Peter Boyer's article in the May 17
New
Yorker, the cost to the gun industry of defending against the
campaign
of city lawsuits recently orchestrated by trial lawyers has been projected
to reach $1 million a day -- that's just defense costs, aside from any
chance of losing, and given this country's
lack
of a loser-pays rule it's money the manufacturers can never expect
to recoup no matter what vindication they may obtain in the end.
Lawyers for the cities reportedly intend to argue that their claims against
the gunmakers -- speculative, newly concocted and retroactive though they
are -- should be given better treatment in bankruptcy proceedings than
the ordinary claims of other creditors, on the grounds that they're meant
to advance the "public welfare", whereas the other creditors' claims are
grounded in the mere obligation of law actually on the books. (Paul M.
Barrett, "Lawsuits Trigger Gun Firms' Bankruptcy Filings", Wall Street
Journal, Sept. 13.)
September 14 --
Careful what you tell your lawyer. Through
much of the American legal system, the need to assure clients confidentiality
in what they tell their lawyers is taken so seriously that large amounts
of sharp practice and abuse are tolerated lest it be infringed to even
a small degree. But an exception is rapidly growing: if your company
is under investigation for environmental
offenses, it may no longer be safe to level with your lawyers.
According to David Lyons in the Miami Daily Business Review, defense
lawyers are increasingly alarmed by a trend in which the federal government's
attorneys, as a condition of agreeing to resolve charges, are demanding
that businesses turn over the bulk of their lawyers' litigation files,
including such things as the notes from employee interviews taken during
lawyer-led internal investigations. Once workers realize that what
they say can be turned over to the authorities, they may start withholding
information from the lawyers, in turn making it harder to demonstrate flaws
in the government's case. A big case settled this summer against
Royal Caribbean Cruises typifies the new brand of prosecutorial hardball.
(Sept. 10 -- full
story).
September 14 --
"Truly egregious" conduct. A unanimous panel
of Michigan's Court of Appeals has thrown out a $15 million malpractice
verdict won by flamboyant attorney/radio host Geoffrey Fieger against William
Beaumont Hospital in Troy. Not only was the expert witness testimony
insufficient to prove the case, the court said, but Mr. Fieger had engaged
in misconduct that was "truly egregious -- far exceeding permissible bounds"
in the proceedings against the hospital and cardiologist Dr. David Forst.
Along with "repeatedly and with no basis in fact accus[ing] defendants
and their witnesses of engaging in conspiracy, collusion and perjury to
cover up their alleged malpractice," the judges wrote, Mr. Fieger
'insinuated, outrageously, and with no supporting evidence
that Dr. Forst 'abandoned' [the patient] to engage in a sexual tryst with
a nurse." ("Appeal
reverses malpractice award", Detroit News, Aug. 24; editorial,
Aug. 25). Mr. Fieger called the panel's ruling a "laughable decision by
three [Gov. John] Engler henchmen" and vowed to file misconduct charges
against all three judges. ("Briefly", Detroit News, Aug.
25).
Best known nationally for having defended Dr. Jack Kevorkian
at his criminal trials, Mr. Fieger was the unsuccessful Democratic candidate
for governor of Michigan in 1998 and as such remains titular head of the
Michigan Democratic Party. His earlier disciplinary run-ins have
included sanctions for submitting misleading pleadings and for trying to
evade random-selection procedures in the assignment of federal judges to
his cases. On July 21, a Detroit News editorial
criticized as excessive a record $21 million award for another of Mr. Fieger's
clients, who had sued DaimlerChrysler over sexual harassment. In
a rebuttal
which ran in the News August 11, Mr. Fieger said the paper's editorialists
had told "bald-faced lies" about him based on "total garbage".
September 13 --
Join our new Verdict Rewards program. On
September 3 a deadlocked jury declared itself unable to reach a decision
in a tax fraud case against eccentric New York millionaire and political
gadfly Abe Hirschfeld. Elated, Mr. Hirschfeld proceeded to throw
a lunch at which he handed each juror a check for $2,500. Only "one
or two" of the ten saw fit to turn down the money, although a couple of
the others were said to have agonized very becomingly about whether to
cash the checks. Apparently there's no current law on the books that
bans paying off juries after the fact.
It's become a common occurrence for jurors to be invited
as guests to lavish acquittal balls thrown by freed defendants, and boxing
promoter Don King raised the ante after his fraud acquittal when he treated
federal jurors to a Bahamas vacation. Outright cash gifts might seem
a logical extension. The extra twist in Hirschfeld's case is that he's
a "serial defendant": his trial on charges of hiring a hit man to kill
his business partner is set to start today, and word could easily spread
among the next set of jurors that this is a man from whom money can be
expected. Hirschfeld himself says he'd have given jurors the checks even
if they'd convicted him. (Uh-huh.) (DeWayne Wickham, Gannett;
Clyde Haberman, "Jury
Booty: It's Lucrative and Legal", New York Times (free, but
requires registration), Sept. 10)
September 13 --
New Overlawyered.com page: Fear
of flirting. Tenth and latest in our series
of topical links-and-commentary pages takes a reform-oriented look at sexual
harassment law.
September 13 --
"Judges rule on cases in their portfolios".
In 1997 at least eight federal appeals judges sat on cases in which they,
their spouses or trusts held stock in one of the parties, in violation
of ethics rules, according to a report from the left-wing Community
Rights Counsel, an anti-property-rights group. Most of the judges
blame inattention to spouses' or trusts' stock dealings for the errors.
(Joe Stephens, Washington Post, Sept. 13 -- link now dead).
September 13 --
"You got to get you a little money". In
this now-classic episode, ABC's "20/20" staged a fake accident on the streets
of New Orleans and called the cops. Within minutes street hustlers
who monitor police radios were on the scene handing out lawyers' business
cards. One arrived in a gold Jaguar. "Might as well say you
hurt your back and your neck. You know what I’m saying? 'Whiplash!
Whiplash!' Guaranteed. About $4,000 to $6,000." The "passengers"
kept insisting they weren't hurt, but the runners weren't easily discouraged:
"You got to get a little money. A couple thousand of dollars. It ain’t
going to cost you nothing. It ain’t going to cost him nothing."
There's money in driving a tow truck, too, if you know
how to work the game. "And you go in the attorney’s office itself,
and he will pay you cash money." How much? "Between $600 and $700
per person." Gordon Stewart of the Insurance Information Institute
says fraudulent crash claims add up to a $25 billion industry: "if you
had this business, you’d be doing pretty well. You’d be in the top of the
Fortune 500". Also caught on camera: a New York chiropractor coaching
an accident victim on how to fake pain symptoms: "You’ll get the Oscar
here, babes, don’t worry." He billed for 94 visits, though the patient
reported only seven.
Then there's the growing problem of deliberately caused
collisions with innocent drivers aimed at setting up liability claims.
One convicted Texas operator said he targeted elderly drivers as victims
because, being less alert, they weren't as good at avoiding the accident,
and added that fraud rings he set up for Lone Star State lawyers and doctors
had deliberately caused at least 300 accidents in two years. "We have a
law office that makes $20 million in two years, you know? Net ..."
Most sinister case of all: a scam artist in Springfield, Mass. engineers
a traffic accident that goes wrong and kills an innocent driver: he later
falsely claims to have held the dying man in his arms, so as to support
his own claim for post-traumatic stress disorder. (rebroadcast Aug.
25 --
full transcript)
September 11-12 --
Knock him over with a feather. Indian tribes,
in negotiations with the state of California over lucrative slot machine
concessions, ceremonially award Gov. Gray Davis an eagle feather as a token
of their personal esteem. Then come the legal complications: you or I or
even the governor of a big state could be sent to prison under federal
environmental laws for knowingly possessing even a single feather of
a protected bird. No showing
is needed that any creature was improperly molested in its gathering: naturally
moulted quills found in your back yard can also get you in serious trouble,
as can feathers from birds that have died from natural causes or were raised
in captivity. In publicized cases, law enforcers have gone after
persons arriving from abroad with antique stuffed birds and a Michigan
artist who used old stocks of feathers as part of her collages. Davis's
office hastened to put out word that the dangerous object very likely belonged
to the state of California itself (which would be lawful) rather than to
the governor personally. (Dan Morain, "An Eagle Feather -- and Controversy
-- for Governor", Los Angeles Times, Sept.
9; Fox News (link now dead)).
Both Davis and his Indian benefactors are likely to come
out in better shape than did James W. Thomas, a 38-year-old resident of
Des Moines, Iowa, whom a federal judge sentenced in 1996 to six months
home confinement and three years' probation after he pleaded guilty to
one felony count of violation of the Migratory Bird Treaty Act. Thomas
had sold an eagle feather bonnet and several other eagle-derived knickknacks
to undercover Fish and Wildlife Service agents. According to the
summer
1996 issue of Federal Wildlife Officer, "Thomas operated a business
in downtown Des Moines known as the Feather Emporium, where he sold imitation
eagle feathers and Native American crafts."
September 11-12 --
"Cook County law bills a secret".
Two lawyers with extensive political connections have charged the Cook
County sheriff's office $3.7 million for representation over the last
two years, which included three high-profile cases. For example,
William R. Quinlan, a former judge and chief city attorney over three mayoralties,
charged $810,000 for 16 months of work on one case at a stated rate of
$180 an hour plus undetermined expenses, suggesting either that his expenses
were very high or his work weeks exceedingly long. The true explanation
may remain a mystery because neither taxpayers nor even the members of
the official Cook County
Board of Commissioners, which was on the hook to pay the expenditures,
have been permitted to see the details of what the lawyers billed for,
including such basic information as the number of hours they put in.
Instead, the two attorneys arranged for judges to seal the billing records,
locking them away in a vault -- for the sake of protecting sensitive information,
they say. (Tim Novak, Chicago Sun-Times, Sept. 7, link now
dead)
September 11-12 --
Overlawyered classrooms. A survey
of 523 school principals, done with the assistance of the American
Tort Reform Association, finds nearly two-thirds say they see more
lawsuits than ten years ago. "Whenever we plan for anything in a school
today, our first consideration is how to avoid a lawsuit," said executive
director Vincent Ferrandino of the National
Association of Elementary School Principals. Supreme Court decisions
on harassment
and disabled rights add to existing exposures over employment,
playing-field injuries and civil liberties violations. "We tell our
principals to err on the side of safety, but they say we have lawyers looking
over our shoulders ready to pounce on us," said executive director Gerald
Tirozzi of the National Association
of Secondary School Principals. Threats of litigation are disruptive
and often lead to payouts of several thousand dollars even if no suit is
filed, another official says. An expert on the other side says school
litigation isn't rising in volume and calls the school administrators "paranoid".
(Anjetta Mcqueen, "Liabilities, Threats Burden Schools," AP/Washington
Post,
CNN, links now dead)
September 10 --
Too many games at GM? General Motors' gas
tank designs may be solidly defensible, but what about its litigation tactics?
According to an Atlanta judge, certain memos in the automaker's possession
resembled Rose Law Firm billing records: first they existed, then they
ceased to exist when a court asked for them, then they went back to existing
again. Meanwhile, company witness Edward Ivey was developing a case
of convenient memory syndrome, forgetting even basic facts about the circumstances
in which he wrote a supposedly damning memo
but suddenly able to remember bits of evidence that helped the company's
case. Moreover, writes Judge Gino Brogdon, GM's motions and arguments
in several lawsuits proceeded to describe Ivey as having affirmed various
assertions about the distribution and purposes of the memo when all he'd
said was that he couldn't remember the opposite. Who did these folks think
they were working for -- the Clinton White House? (judge's
opinion; Bill Rankin, Atlanta
Constitution,
Sept. 9; Trisha Renaud, Fulton
County Daily Report; AP/Washington Post Sept. 9 morning
and evening stories, links now dead; DowJones.com.)
Lawyers for GM said they were "disappointed" by the judge's ruling, called
it inconsistent with rulings by other courts, and said the company intends
to pursue every means of appeal, but as of this morning GM had not yet
posted
a press release at its website. (Overlawyered.com coverage of
this summer's Chevy Malibu trial: July
10, August 27; page
on auto safety litigation).
A reason to approach the new ruling with caution is that
at least one of its crucial assertions of fact appears flatly incorrect,
concerning the now-famed "Ivey memo" which sought to guesstimate the aggregate
costs of post-crash fires in GM-made automobiles. In the third paragraph
of his opinion, Judge Brogdon describes the memo as having "concluded
that GM could prevent such fires and the resulting fatalities by spending
a mere $2.40 per vehicle in safety improvements." But even a
cursory reading of the two-page Ivey
memo itself, which the magazine Mother Jones has posted at its
website, shows that it did nothing of the sort. While (wrongheadedly
or not) attempting to quantify the benefits if GM could someday find a
way to prevent all post-crash fires, the memo describes it as "impossible"
to do that until some way is found to power cars without flammable fuel
(p.2),
and reveals nothing at all about whether Ivey or anyone else at the company
knew of any design changes that they believed could reduce the incidence
of fires even marginally -- let alone whether such changes had been costed
out at $2.40 or any other number.
Some light is indeed shed on these latter questions by
a longer memo,
prepared by GM lawyers in the course of litigation, which reconstructed
discussions among the company's fuel-system engineers at the time, and
which is also posted (apparently in excerpted form) at the Mother Jones
site. The memo depicts the engineers (pp. 3,
4
in Mother Jones's pagination) as concerned about the safety tradeoffs of
alternative gas tank placements, and as viewing forward placement of the
tank as a decidedly mixed bag on safety grounds since, while improving
protection from rear-end collisions, it would increase the likelihood that
spilled fuel would enter the passenger compartment during other types of
accidents. The memo includes no indication as to whether one placement
would have been more or less expensive to manufacture than the other.
Trial lawyers keep hammering away at the charge that GM refrained from
instituting life-saving improvements because it had costed them out at
$2.40 a car and decided not to spend the money; but if there is any evidence
to that effect, it does not appear in these supposed smoking-gun documents
that they have proffered to the public.
September 10 --
State of legal ethics. Whether by coincidence
or not (see above item) the August 2 National Law Journal runs a
big column in its section aimed at practicing lawyers under the title:
"Discovery: What's wrong with coaching?" Jerold S. Solovy and Robert
L. Byman, fellows of the American College of Trial Lawyers and partners
at the respected Chicago firm of Jenner & Block, argue that when it
comes to witness preparation, [w]e need to take the pejorative connotation
out of 'coaching'." They hasten to point out that they're not advocating
changing witnesses' stories. But they view it as quite okay to suggest
language to friendly witnesses that is, well, more effective for the purpose
at hand than the language they had come up with themselves, so long as
it's not false. They also declare that while there may be "tactical"
reasons to the contrary, they see no ethical problem in trying to turn
a witness who's hesitant and diffident about his narrative into one who
radiates confidence -- even though the "demeanor evidence" conveyed by
hesitance and diffidence may be of considerable truth value to a court.
And while acknowledging that many forms of coaching clearly go over the
ethical line, Solovy and Byman approvingly quote Holmes's comment [in Superior
Oil, 280 U.S. 390, 395-96 (1930)] that "[t]he very meaning of a line
in the law is that you intentionally may go as close to it as you can"
-- seeming to confound the legal question of what you should be
able to escape punishment for doing with the ethical question of
how you should in fact behave.
September 10 --
Hope for the Philadelphia- abducted. Judge
Pamela Pryor Dembe, of the court of common pleas in the City of Brotherly
Love, has thrown out on forum non conveniens grounds a lawsuit filed
by Connie Endre against the Trump Marina casino in Atlantic City over injuries
Ms. Endre said she sustained when she tripped over a vacuum cleaner cord
at the casino hotel. In this case the accident had taken place in
New Jersey, which was also the state where Ms. Endre lived and worked,
where she had gotten her medical treatment, where the defendant casino
was headquartered, and where the likely witnesses were located. So
how did the suit come to be filed in Philadelphia, instead of New Jersey?
One explanation might be that the law firm Ms. Endre had signed with was
based in Philly; another might have been the reputation for generosity
of that city's juries. "Everyone loves a Philadelphia jury," agrees plaintiff's
attorney Elizabeth Gray of Rosenbaum & Associates.
"These cases are fairly routinely filed in Philadelphia
and difficult to get out of Philadelphia despite the lack of ties to Philadelphia,"
defense attorney Robert Lawler of Wilbraham Lawler & Buba told Robert
Sharp of the city's Legal Intelligencer. (See also Sept.
1 commentary, on suits filed by employees of the New York-New Jersey
PATH train system.) "This case, to my mind, reflects
a carefully thought-out decision [by the judge] that there were no ties
to Philadelphia other than the plaintiff's law firm being in Philadelphia."
Carefully thought out, yes, but sadly rare: "Attorneys for both the defendant
and plaintiff called the outcome unusual." Isn't it time it was made
less unusual? (Sept. 3 -- full
story)
September 9 --
Giuliani confinement ends. A jury
that happened to include the mayor of New York City took only 50 minutes
to reject Oliver Johnson's claim that negligently over-hot shower water
had dealt him a highly personal injury. Plaintiff's lawyer Joe Kellner
blamed a young lawyer in his firm for letting Hizzoner onto the case rather
than exercising a peremptory challenge. But Giuliani, who served
as foreman, said he let the other jurors go first in stating their opinion,
and by the time the case came around to him it had already been decided.
(Post,
Daily
News, and links now dead: AP/Newsday, New York Observer).
September 9 --
A case of meta-False Claims. Sharp practices
in Medicare billing have been a well-documented scandal, so it was easy
to assume the U.S. Department of Justice knew what it was doing in 1997
when it filed charges against roughly 145 hospitals for alleged overbilling;
its crackdown invoked the False Claims Act, a law that levies stiff penalties
against those who submit fraudulent bills to the government. But
then prosecutors took a closer look and concluded that the hospitals had
not violated the law after all in a fair number of the cases, which were
accordingly dropped, according to a General Accounting Office report issued
last month. Unfortunately for those defendants, there doesn't seem
to be much of a remedy for having false claims made against you under a
law called the False Claims Act. (Peter Aronson, "Claims by DOJ Lacked
Proof", National Law Journal, Aug. 19 -- full
story) (see Jan. 18 commentary)
September 9 --
"Complaints against lawyers up again". Grievances
against New York attorneys hit a record 13,528 statewide in 1998, up 58
percent in eight years. Public and private sanctions applied against
them were up by similar margins of 56 and 52 percent. Reassuring
fact that isn't nearly so reassuring when you think about it: much of the
increase reflects simply the persistent rise in lawyers' numbers, rather
than any change in their standard of practice. (Gary Spencer, New
York Law Journal, Sept.
8).
September 9 --
"Bringing art to court". The movie
Natural
Born Killers "is the target of an increasingly notorious lawsuit" claiming
it inspired a real-life shooting. The judge agreed
to let the suit proceed, First Amendment or no, and already another
Hollywood-did-it suit is moving forward, this time blaming The Basketball
Diaries for the Paducah school shootings (see July
22 commentary). The itch to control what's shown on screen
hasn't changed much since the days of the Hays Office and its Production
Code, writes Jesse Walker, "[b]ut this is uncharted territory. As bad as
the old censorship was, it did not require artists and entertainers to
measure in advance every possible effect their work could have on every
possible person in their audience." (Reason,
August/September). Salon's David Horowitz calls the political-legal
onslaught against the entertainment industry "a consciously designed parallel
to the assault on tobacco and gun manufacturers" and deplores the "authoritarian
vision" of the Weekly Standard's recent pro-censorship cover article:
"With
conservatives like these, who needs liberals?" (Aug. 30).
September 8 --
Wages of wrongdoing. According to news reports
in June, sentencing is set for this Friday, Sept. 10, in the case of two
prominent Staten Island attorneys convicted on multiple counts of paying
insurance adjusters more than $100,000 to give them favorable terms on
some $2.5 million in settlements, in disloyalty to their companies.
After an eight-week trial, a federal
jury deliberated for three and a half days before finding the firm of Grae,
Rybicki and its partners Frederic Grae and Thomas Rybicki guilty on all
23 counts of the indictment.
The case began with a 1995 probe by the Manhattan District
Attorney's office that led to the indictments of 21 attorneys along with
several middlemen who served as conduits for bribes. Along with wiretap
recordings, prosecutors obtained actual ledgers used by middlemen in which
they recorded their bribe activities. Many guilty pleas and convictions
have resulted, with some cases still pending. Companies whose employees
participated in the scheme, without knowledge of higher management according
to prosecutors, included Aetna, Geico, American International Group (AIG),
and Commercial Union.
A lawyer for Rybicki had argued that his client and Grae
were unaware that money they gave middlemen was being used to bribe adjusters,
instead saying that the go-betweens were being paid "for their skill and
expertise in evaluating cases and negotiating settlements, especially in
multi-defendant cases where several carriers were involved." He also
said that the transactions had not defrauded insurance companies because
the cases had settled for fair value.
Press coverage has described Grae & Rybicki as the
largest law firm on Staten Island; Frederic Grae is a former president
of the Richmond County
Bar Association and Thomas Rybicki is a former president of the Staten
Island Trial Lawyers Association. (New York Law Journal, June
17) (New York Daily News, June
18).
September 8 --
Billabong update: surfer clothing gets a reprieve.
Officials at Winneconne High School in Wisconsin have changed their mind
and decided to lift their ban on clothing with the brand name "Billabong"
(see "Annals of Zero Tolerance", Sept. 2, below). The word is of
Australian aboriginal origin and means lagoon or backwater, but a principal
contended it was too suggestive of "bong", the word for a marijuana pipe
(Milwaukee Journal-Sentinel, Sept.
6). In the Chicago Tribune, columnist Steve Chapman decries
the way school-shooting hysteria has led administrators to ban bookpacks
and trench coats and treat the students compelled to attend their institutions
as "dangerous, incorrigible, undeserving of respect" and without privacy
rights. "What's the difference between school and prison? At school, you
don't get cable TV." (Sept. 2 --full
column)
September 8 -- Marbled
Murrelet v. Babbitt: heads I win, tails let's call it even.
Environmentalist
litigators on the West Coast circle the wagons to defend a cherished
principle: they get to extract fee awards from their opponents when they
win, but their opponents don't get to extract fee awards from them when
the case falls out the other way. It may be unfair as all get-out,
but to them it's precious, and the Ninth Circuit has just revamped its
attorneys' fee jurisprudence to make the fee entitlements even more asymmetrical
than before (California Law Week, Aug. 30 -- full
story)
September 7 -- How
to burnish your community's image. The Detroit
suburb of Melvindale has sued WKBD-TV and anchor Amyre Makupson over news
coverage which may have associated the town in viewers' minds with the
idea of cockroaches. The station's coverage, over four days last
month, focused on neighbors' alarm about a roach-ridden local dwelling
and included file footage from an earlier infestation incident, all of
which, per allegations quoted in the September 2 Detroit Free Press,
"reduced the city's marketability and harmed the property, credit and public
goodwill of the community". (The station denies its coverage was
unfair or inaccurate.) How better to improve your town's image than
by filing a legal action guaranteed to generate many more news stories
and a stack of permanent legal documents linking the words "Melvindale"
and "cockroach"? For the record, when your editor briefly visited
the unpretentious downriver community last year, he does not remember observing
even a single member of the family Blattidae. ("TV reports
on roaches spur lawsuit" -- full
story).
September 7 --
Labor Day: "Overworked America?" Your editor was
one of the panelists on yesterday's "Lehrer News Hour" discussion on this
subject, which PBS has now posted in transcript
and Real Audio form at its website. Not much on legal issues
(although the "family-friendly workplace" theme came up) but he did manage
to slip in a few reasons why hand-wringing on the subject of long workdays
may be overdone, namely that: 1) working conditions have improved immeasurably
since the now-romanticized 1950s and very few of us would change places
with our fathers' jobs; 2) most people who work very long hours today do
so as a choice and because they're ambitious in some way; 3) one of the
perennially undercovered Labor Day stories is "how little the conditions
of average workers seem to have been changed by the much-heralded decline
of unionism" (he ducked after that one).
September 7 -- The
shame of the ACLU. There are many sad aspects
to the California Supreme Court's decision last month in Aguilar
v. Avis, upholding an injunction in a workplace harassment
case against an employee's future use of racial epithets for any reason
and under any circumstances. It's too bad that by a margin of only
one vote -- over heated dissents, to be sure -- the high court managed
to pretend there's no real conflict between workplace harassment law and
the First Amendment right of free speech. It's too bad it was allowed
to duck the problem of the injunction's overbreadth, often deemed a constitutionally
fatal flaw when it comes to injunctions restraining speech. And it's
too bad the American Civil Liberties Union
threw away any remaining reputation it may have had for putting civil liberties
first, by intervening on the side opposed to free speech -- because
it considers antibias norms more important. ("Court Upholds Hate
Speech Gag", San Francisco Recorder, Aug.
3; columnist Vin Suprynowicz, Las Vegas Review-Journal, Aug.
9).
September 7 -- 25,000
pages served on Overlawyered.com.
Pretty good for just over two months into the project, we think.
Thanks for your support!
September 7 -- "Addictive
tobacco money". If the state attorneys general
that sued cigarette companies were
to be believed when they said they were just trying to reclaim money needlessly
expended by taxpayers, you'd expect their states to apply the settlement
windfall to lowering taxes, right? How many of the fifty states have
actually done that? (If we're lucky, the number might get up to three.)
"From the very start, the settlement was a swindle," editorializes Investor's
Business Daily. But "[w]hat do you expect from government officials
who are addicted to other people's money?" (August 27, link now dead).
September 7 -- Click
here to sue! A website
for disgruntled former AOL volunteers ("community leaders") makes
it easy to join a class action suit
accusing the giant Internet service provider
of paying them no more than they bargained for (i.e., nothing at all) when
they carried out volunteer administrative tasks in areas of interest to
them. "[W]e suggest you NOT advise AOL of your intent or involvement
with the lawsuit until AFTER your Consent has been duly filed in the Court...It
will not cost you a single penny to
join the lawsuit." The World Wide Web would certainly be a different
place if all volunteer effort that went toward website creation and maintenance
had to be redefined as an employment relation
subject to withholding and the Fair Labor Standards Act. Most likely,
it would still be a mere gleam in the eye of Al Gore.
September 7 -- Oops!
Please don't read above item. We were about
to announce the imminent unveiling of Overlawyered.com's brand-new
Discussion Boards, which will give visitors a chance to comment on the
site's contents, react to current news stories, share outrageous (but documentable!)
tales of litigation, and do the other sorts of fun/serious stuff associated
with bulletin board systems. As part of the announcement, we were
going to call for volunteers
to moderate particular forums, propose threads for discussion, help nip
inappropriate postings in the bud, and do the other sorts of volunteer
tasks that make the difference between a chaotic bulletin board and
one that people enjoy using. Then we learned about the AOL situation
(please don't read above item!) and realized someone could come after us
for not paying these volunteers
wages and time-and-a-half, giving them paid vacation, rectifying the ergonomic
problems they run into from excessive keying, keeping them from flirting
with each other, and so forth. Now we're biting our nails and wondering
whether to call the whole thing off, or ask volunteers
to sign forms in triplicate saying they're definitely not employees of
this site, not a labor-management nexus at all, no employment relationship
nohow. If any readers undeterred by all this want to volunteer
anyway to help with the bulletin boards, give
us an email.
September 4-6 -- Okay,
we admit it: we admire these lawyers.
More than forty Seattle attorneys, led by the criminal defense bar under
the rubric of the Innocence Project Northwest, mobilize to represent more
than a dozen of the railroaded defendants convicted of child-abuse crimes
in the Wenatchee, Wash. hysteria of the mid-1990s. In all, 43 local
residents were accused and 28 convicted, many given sentences of more than
twenty years, on evidence the flimsiness of which came to national notice
through the efforts of the Wall Street Journal's Dorothy Rabinowitz
and others. In one story so dramatic it could hardly be bettered
by a Hollywood scriptwriter, lawyers raced this February to beat the deadline
for contesting the conviction of Henry Cunningham, who'd been given a 47-year
sentence. They made it to the courthouse with only 18 minutes to
spare before a shroud of finality descended on Cunningham's case, prosecutors
declined to defend his conviction, and today he's a free man. (Elizabeth
Amon, "A White Knight's Tale", National Law Journal, August 20,
1999 -- full
story). The Seattle Post-Intelligencer's 1998 roundup
on the Wenatchee debacle was entitled "The
Power To Harm".
September 4-6 -- Bite
marks in Big Apple. New York City paid out
a record $381 million in lawsuit verdicts and settlements last year, an
18 percent leap from fiscal 1997. That's about $200 annually for
every Gotham family-of-four. The great majority (83 percent) of the
total was paid out on personal-injury claims, the rest going for property
damage and contract claims. The figures don't include the Transit
Authority or other off-budget agencies. (New York Post editorial
-- Sept. 2)
September 4-6 -- Business-interruption
claim of the week. A South Carolina judge
has rejected Kenneth Curtis's claim that the state owes him money for disrupting
his business when it passed a law banning the sale of urine for the sake
of beating drug tests. Curtis says the law has cut into his three-year-old
enterprise of selling his urine over the Internet ($69 plus shipping for
five ounces). His argument that the law is unconstitutional is still
pending, but a lawyer for the state says that it is protected by official
immunity from money claims on the issue (AP/Spartanburg, S.C. Herald-Journal,
Sept.
3)
September 4-6 -- Rude
questions to ask your doctor. Why, exactly,
has the organized medical profession
elected to ally itself with America's trial lawyers to make it easier to
sue health plans? Do they really think in the long run giving the
lawyers a new and deeper pocket to go after is going to relieve the negligence-suit
pressure on them? The National Association of Manufacturers
takes a dim view of the docs' apparent feed-the-wolf strategy, especially
since its employer-members, as operators of health plans, are prime candidates
to serve as Purina Wolf Chow. NAM points out that physician-Rep.
Tom Coburn (R-OK) recently decried a measure that would make it easier
to find out if a doctor has been sued, protesting, "Ninety percent of suits
against doctors are without merit." (Wall Street Journal,
Aug. 24.) Yet this is the same bunch of litigators Coburn wants to
turn loose to sue health plans. (Workplace
Watch newsletter, Sept. 1999).
September 3 -- New
survey of state-court verdicts. There's
plenty of genuine news to be gleaned from the release of a new Bureau of
Justice Statistics study on tort, contract and real property cases decided
in state court in the nation's largest counties in 1996 (study
available here). For example, the new numbers should permanently
lay to rest the assertion, often heard from trial-lawyer advocates, that
the real source of high litigation rates is businesses suing over contract
disputes ("Businesses file 10 times as many lawsuits as injured consumers",
claims the Washington State Trial
Lawyers Association; "Business cases account for 47 percent of all
punitive damage awards," chimes in the Association
of Trial Lawyers of America). In fact, the BJS study found that
businesses made up a scant 7.8 percent of plaintiffs at jury trials and
16.3 percent at trials generally, with individuals the plaintiffs in 91.1
percent and 81.5 percent respectively; and that the overwhelming majority
of punitive damage payouts came in tort, employment and other cases typically
filed by individuals.
Unfortunately, most of the press has followed the Bureau
of Justice Statistics's own press
release in highlighting two findings of the study which 1) aren't very
newsy or surprising and 2) are readily misinterpreted by newcomers to the
field. The first of these is that plaintiffs won about half of the
cases that went to trial; the second is that plaintiffs won a slightly
higher percentage of cases tried before a judge alone ("bench trials")
than they did of cases tried to a jury, though damages were lower in the
bench-trial cases. The higher rate of plaintiff success in judge-tried
cases strikes some reporters as ironic and counterintuitive since judges
are said to be more skeptical of plaintiffs than juries are, and here they
are giving them more victories -- that sure must refute the conventional
wisdom, no?
The reason a roughly 50-50 win rate at trial isn't very
newsworthy is that it's an almost pure artifact of the process by which
only a tiny percentage of all lawsuits wind up reaching trial, the rest
being settled or withdrawn before that point. As UCLA's Benjamin
Klein and Yale's George Priest (among others) have demonstrated, trial
win rates will tend to converge on a middling figure because clear-winner
and clear-loser cases are more likely to settle beforehand, leaving for
trial a residue of cases whose outcome informed lawyers have trouble guessing.
That's why win rates so often come out around 50 percent at many different
times and places around the world, including both highly litigious environments
where lots of money gets redistributed and highly unlitigious ones where
the preconditions for getting into court are quite demanding. Nothing
at all can be inferred from such numbers (standing alone) about whether
a litigation system is pro-plaintiff or pro-defendant, headed in a liberal
or conservative direction. If one type of case begins winning more
often before juries, more marginal examples of that same kind of case will
be emboldened to take their chances where they would not before, and many
of these former long-shots will lose, pushing the win rate back down.
And what of the higher rate of plaintiff success at bench
trials? Cases that wind up being tried before judges are far from
a random cross-section of cases tried in general, because in this country
most money claims can be tried to a judge alone only by consent of the
parties, and individual tort plaintiffs are seldom willing to waive their
jury rights (and when they do, it's usually because they recognize that
special circumstances make them likely to do better going with the judge).
The practical wisdom among many attorneys is that it can make sense for
a plaintiff to agree to a bench trial when the likelihood of proving liability
is strong but there is no great likelihood that a sympathy factor will
drive up damages. The study's results -- slightly higher win rates
but lower damages in those cases where plaintiffs have consented to bench
trial -- are entirely consistent with that wisdom (Washington Post,
Sept. 2; link now dead.)
September 3 -- EEOC
encourages anonymous harassment complaints.
"Concerned that employees may be reluctant to report complaints, the EEOC
guidance [issued this June] advises companies to offer a phone line through
which individuals can ask questions or discuss concerns about harassment
anonymously. Yet management attorneys have strong reservations about
the idea. Employers are obligated to investigate all harassment complaints,
they say, but this is tougher to do when they come in anonymously over
the phone." Thus reports Lisa Fried in the Aug. 19 New York Law
Journal. Read that again carefully, and you almost have to conclude
that what's holding up the bright idea of setting up snitchlines to facilitate
anonymous denunciation in American workplaces is not that anyone's worried
about what happens to the targets of these complaints, who will find themselves
the subject of suspicion and internal investigation without even knowing
who their accuser is; no, it's that following up on faceless complaints
of harassment is tougher on the investigators. (full
story)
September 3 -- My
lawyer is an impostor. Georgia officials
scratch their heads at the frequency with which bold residents of their
state simply hang out a shingle and start practicing as lawyers, though
innocent of either law school or the bar exam. W. James Thompson
pulled off such an imposture for 13 years. Andre D. Taylor put together
a marketing package and mission statement for his bogus law firm, and showed
up as a role model at a high school's Career Day. The more careful
of the ersatz avocats stick to areas like filing demand letters
which allow them to avoid going to court or dealing with real lawyers.
Unsettling aspect: "many clients of fake lawyers are perfectly happy. Indeed,
some of these people have built their practices on client referrals." "We
really liked him," said one client of Thompson, who drove Jaguars and a
Mercedes-Benz. (Ann Woolner, Fulton County Daily Record, Aug.
2 -- full
story).
September 2 -- Charity
dollars support trial lawyers' gun jihad.
If you amassed a fortune in business and decided to devote it to charitable
pursuits, would you want it spent to help America's trial lawyers expand
product-liability law even further? The Capital
Research Center's August 1999 Foundation Watch reveals that
big philanthropies are helping bankroll the litigation campaign that's
trying
to take down the gun industry. The list of foundations includes
many well-known names: George Gund,
Joyce,
Charles
Stewart Mott, Richard & Rhoda
Goldman Fund, Eugene & Agnes Meyer Foundation, George Soros's Open
Society Institute, and others. Also getting into the act, as
members of the Coalition to Stop Gun Violence
and similar groups, are such Main Street institutions as the YWCA
[not, as previously reported, its male counterpart, the YMCA; this was
a mistake of the Coalition itself which passed into later reporting],
Presbyterian
Church USA and National Urban League.
Of course many of these big entities, like many of the lawyers and municipalities
they're assisting, have far more money in the bank than the family-owned
gunmakers whose legal torment they're helping to finance, yet neither they
nor anyone else will have to pay a nickel
to make whole the vindicated defendants if their newly concocted legal
theories misfire in court. Don't you sleep easier than you would
if you'd gone into a career in philanthropy? (full
report; sidebars one,
two).
September 2 -- Tainted
cycle. Litigation may be winding down over
the 1993 outbreak in the Milwaukee water
supply of Cryptosporidium, a parasitic microbe found in human
waste. In 1994 a trial court agreed to certify a class of some 400,000
persons believed to have gotten sick, a sizable proportion of the local
population, exposing the city to potentially huge damages even though most
of the illnesses had been transitory: "Multiply anything times 400,000
and you have a lot of money," said Linda Hansen, attorney for the city.
Hansen explained that "if the city ended up paying, the money would make
a circular trip from the taxpayers and back," to quote a reporter's paraphrase.
Taxpayers pay the water utility's bills, and "since it is some of those
same taxpayers who are suing, they would simply be getting their own money
back, less the legal fees." Sparing them that fate, the courts later
decertified
the class. Individual suits were allowed to proceed, but the
pending case involves about 200 plaintiffs as opposed to 400,000. (Milwaukee
Journal-Sentinel,
August 29 -- full
story)
September 2 -- Annals
of zero tolerance. Officials at Winneconne
High School in Wisconsin have banned t-shirts and other clothing with the
"Billabong" brand name because the name is too suggestive of "bong", the
term for a marijuana pipe. An Australian aborigine word meaning lagoon,
"Billabong" is the name of a company that originally made surfboards and
later branched into surf clothing. "I realize Billabong is a surfing
company," said principal Ed Dombrowski. "If we were in California
or Florida where they do a lot of surfing, I would understand. But we don't
surf here so where do we draw the line?" Where, indeed? Adam
Szadkowski, who was ordered to go to the restroom and turn his shirt inside
out to conceal the offending word, found the rule "ridiculous": "Are
they going to ban us from wearing a shirt that says 'potato' just because
it has the word 'pot' in it?" (Milwaukee Journal-Sentinel, Sept.
1 -- full
story)(see update, Sept. 8).
September 1 -- Alabama
story goes national. Arianna Huffington
is the first national columnist to tackle the story of last month's indictment
of a prominent Alabama trial lawyer for allegedly orchestrating false charges
of rape and assault against a tort-reforming Lieutenant Governor candidate
last fall (see August 26 commentary).
Huffington says the rape story was "blast-faxed" to the Alabama media "one
week before a critical fund-raising reporting deadline" and that Republican
Steve Windom's campaign went into a tailspin as he was forced to move into
full-time damage control and protect his horrified family from the media
glare. In an interview, Windom tells Huffington, "It would have been
impossible to disprove the charges in time for the election if it were
not for a whistleblower -- a trial lawyer who gave us the plot, chapter
and verse." (August 30; full
column).
On August 20 the Associated Press reported that the former
director of the Alabama Trial Lawyers Association, Don Gilbert, and the
group's former spokesman, Mike Martin, were granted immunity in the probe.
Lawyers for the two men stressed that no wrongdoing on their part should
be inferred, while Ivey law partner Barry Ragsdale scoffed that "Tommy
Chapman [the prosecutor] was giving out immunity agreements like mints
at a party". AP also said that according to the indictment, Ivey
was charged with paying accuser Melissa Myers $ 2,700 in connection with
her role. A press
release from the U.S. Chamber of Commerce describes Ivey as one of
the state's most active lawyers in filing class
actions. Update: a jury in June 2000 acquitted Chappell,
acquitted Ivey of the felony bribery charge, and convicted Ivey of the
two misdemeanor counts of witness tampering and criminal defamation; appeal
planned (see Aug. 31, 2000). Further
update: in July 2001 the Alabama Supreme Court reversed these convictions
and ordered Ivey acquitted of the charges (see July
7, 2001).
September 1 -- Time
to overhaul jury selection. Yale law professor
Peter Schuck gets called for jury duty and is dismayed at how lawyers are
allowed to probe and challenge jurors for "biases" that consist merely
of healthy skepticism, at the removal of prospective jurors for being too
well-informed, and at the endless squandering of all sides' time in the
fighting over who should be empaneled. "In truth, good lawyers use
voir
dire not to eliminate bias but to create it, by favorably predisposing
jurors to their case before any evidence is presented." (P.S.
He doesn't get on the panel.) (National Law Journal, Sept.
6 -- no longer online). Overlawyered.com's editor took a look
at jury selection issues some time back and came to much
the same conclusions.
September 1 -- "Block
PATH to lawsuits". Hard-hitting editorial
in Aug. 30 New York Daily News on the litigation woes of the troubled
PATH train system, which links New Jersey commuters to New York City.
Unlike city subway systems, which are covered by workers' comp laws, PATH
is officially a railroad and thus falls under the sue-'till-you're-blue
Federal Employer's Liability Act (FELA). In 1908, when FELA was passed,
one in eight railroad workers was injured on the job. But PATH's
1,100 employees have filed 1,086 pending
injury claims, approximately one apiece. "Is railroading more dangerous
now than then? Hardly. PATH employees have simply gotten good
at milking the system."
If that sounds like too harsh an judgment, the News
backs it up with stories galore. PATH employee Anthony Courtney had
already filed two injury claims when he climbed a tree in his yard to saw
off a branch that was interfering with his TV reception, fell and hurt
his foot. Job-related, he insisted, because the earlier injuries
had interfered with his grip. Another worker sued for psychological
stress after seeing a rat in a tunnel under the Hudson. 325-lb. dispatcher
John Myrlak sued after his chair cracked and gave way underneath him, and
a jury voted him $1.5 million, saying he should have been given a bigger
chair. PATH eventually won all these cases -- Myrlak's award was
thrown out after eight years of legal wrangling -- but the defense costs
help bring PATH's cumulative annual claims payout to $6 million, or about
$5,500 per current employee. Curious fact: most of the claims against
the rail line are filed not by lawyers in the local NY/NJ area but by four
law firms in Philadelphia, far from PATH's operations, apparently because
Philly lawyers are the ones who know how to work the FELA levers.
(full
editorial; scheduled to remain online until Sept. 4).
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