Overlawyered – All Horse Edition

The need for tort reform doesn’t necessarily arise from headline-grabbing blockbuster verdicts but rather a “death by a thousand cuts” of many small suits of questionable merit.  Example: A woman sues the party host after drinking and then attempting to get on his horse as part of the party festivities.  She falls, suffers injuries and files suit against the host making general allegations of negligence, including, “providing … the opportunity to participate in the ‘inherently dangerous activity of horseback’ ”.

Does the host’s behavior rise to the level of negligence?  And, if so how is the woman’s negligence less than his?  He may have offered the alcohol; she drank it.  He may have offered the horseback ride; she accepted.  Have we reached the point in America that we need to have party goers sign waivers for private festivities?   But since exculpatory agreements are generally frowned upon by the courts I think I’ll just stay home alone.  A lot of fun that will be.  (“Suit shows you shouldn’t drink and ride horses”, The West Virginia Record, Aug. 8).

Horse example number 2:  Certified Massage Therapist Mercedes Clemens is suing two state agencies because her avocation is massaging horses but the state won’t let her (at least not for a fee) because she is only licensed to massage humans.  And, for once it’s really not about the money because she’s not asking for it in her lawsuit, just the right to massage animals.  It’s not as if Clemens is practicing pediatric anesthesiology for kicks.  So who cares, really?

I suspect it’s the veterinary board or the National Board of Certification for Animal Acupressure (at the behest of its members) who fear Clemens and people like her will poach their clients. And, if the state would simply step out of the way in this instance it could avoid this lawsuit. (“Woman sues for right to massage horses”, MSNBC, Aug. 11 and “Rockville therapist sues state for right to massage animals”, Gazette.Net, Jul 2).

My Right to Remain Silent – And, No “Papers” Either Copper!

Olympia, Washington attorney Legrand Jones refused to provide police his identification and was then arrested and charged with trespassing and obstructing a police officer. He told the media “I don’t have to show my papers on demand. I don’t live in that kind of world.” (I can’t refrain from pointing out that if you follow the Jones link above, it displays his accomplishments and photo next to a generic-type photo of a person being forcibly arrested. A potential client, perhaps?)

Seriously, though–I agree that if you’re minding your own business and accosted by a police officer demanding identification you have the perfect right to continue on your merry way. The story suggests a slightly different twist–that he was allegedly trespassing on Port property when approached by the police officer who then requested identification. Perhaps some law enforcement or criminal defense law experts out there can shed some light on Jones’ defense. (“Arrested lawyer argues people don’t have to show police ID”, AP/Seattle Post-Intelligencer, Aug. 7).

Update: Commenter gitarcarver identified a more comprehensive account of the allegations (“Olympia attorney argues against anti-war protest arrest”, The News Tribune.com, Aug. 12).

“Cy pres awards under scrutiny”

I’m quoted at length in a National Law Journal story about criticisms of cy pres awards, the ostensibly charitable contributions demanded in class-action settlements that actually serve to inflate attorneys’ fee awards without requiring actual payments to actual class members. Plaintiffs’ attorneys are using the device to try to get around the requirements of the Class Action Fairness Act, which made it more difficult for attorneys to inflate the nominal value of settlements through coupons, the pre-CAFA means by which plaintiffs’ attorneys inflated settlements. (I’m actually misquoted in one sentence: I said “putative class” to the reporter, and it was written in the article as “punitive class.”  Update: corrected in on-line edition.) (Amanda Bronstad, National Law Journal/law.com, Aug. 11).

“November Election A Lawyer’s Delight”

Daniel Fisher usually understands legal issues and has done some good reporting about trial-lawyer abuses, so I was very disappointed in today’s Forbes.com story (which quotes me about Obama and CAFA). Most notably, it’s not true that tort reform is a “catchall phrase for legislative measures designed to make it harder for individuals to sue businesses”–many tort reforms make it easier for individuals with legitimate claims to sue businesses. Tort reforms are simply measures to improve the accuracy and efficiency of the civil justice system; they’re opposed by trial lawyers because they derive billions of dollars of wealth from inaccuracies and inefficiencies in the civil justice system, and supported by businesses and consumers that are the victims of such inaccuracies and inefficiencies.

The article also inaccurately characterizes the Obama-Clinton medical malpractice legislation, and furthers the idea of “Kennedy is a moderate,” blurring the role of the Supreme Court by implicitly endorsing the liberal idea of it as a political superlegislature rather than a judicial body with an obligation to follow the law. The focus on anti-preemption legislation, as opposed to some of the dozens of other pro-trial-lawyer-lobby bills pending in this Congress and likely to be renewed next Congress, is unusual. (Separately, I disagree with Jim Copland; I don’t think McCain would hesitate to veto the giveaways to the trial-lawyer lobby if they’re in single-purpose bills and not attached as hidden amendments to omnibus legislation.)

I’m less surprised than Fisher and Bill Childs that Obama is getting money from defense firms, or, more accurately, attorneys who work at defense firms. The legal establishment is overwhelmingly liberal (hence the 3:1 fundraising advantage Obama has), and many defense attorneys are perfectly happy with a status quo that requires companies to pay them millions of dollars to continue doing business. (Some are too happy, and have vocally supported ABA resolutions that would harm their clients–something their clients should pay closer attention to.)

While plaintiffs’ law firm contributions are often coordinated (sometimes a bit illegally, as when Tab Turner’s firm and Geoffrey Fieger’s firm were caught reimbursing their employees for donating to John Edwards), it’s a mistake to think the same thing happens in the defense bar, where attorneys are donating on an individual basis because they perceive future government administration (or Article III) jobs of a certain political caliber as pay-to-play or because they’re otherwise simply interested in the political process. Kirkland & Ellis may have tobacco and asbestos defense in its portfolio, and many alumni in the Bush administration, but most Kirkland attorneys are doing other things, and a disproportionate number of them at the Chicago-based firm are going to be former classmates of or students of Harvard Law graduate and Chicago Law lecturer Obama, and have the six- and seven-digit incomes to give maximum contributions–and it only takes a few dozen $4600 contributions to make a firm look like a big contributor.  (And, on the other hand, as if to demonstrate the bipartisan nature of most law firms, John McCain turned to a Republican attorney, former Reagan White House Counsel A.B. Culvahouse, at the largely Democratic O’Melveny & Myers to lead his vice presidential search.) During the primaries, the trial lawyers were giving most of their money to Edwards, Clinton, and Biden, but those fundraisers are now doing business with Obama, as the recent press coverage of Fred Baron shows.

But the article is correct that the outlook for federal tort reform is grim, and that reformers are looking at rearguard actions defending against numerous attempts to make the system worse.

Guest Blogger This Week

Hello again!  Walter Olson has welcomed me back to help fill in while he’s away.  Don’t forget to check in at Overlawyered’s sister site, PointofLaw.com which also has a guest blogger this week.  I’ll hit some high points on joint & several liability, wrongful death and might even pick on John Edwards a bit.  You’re welcome to send along any story leads, with special encouragement for leads not picked up on by the national media–many of which come from your local paper or television station.

Baron money trail forced Edwards’ hand

Per Marisa Guthrie at the magazine Broadcasting & Cable, ABC News was able to force John Edwards’ hand in part because it had been tracing the Fred Baron money trail (which, it will be recalled, Edwards supposedly had nothing to do with). “According to multiple sources, Edwards was apoplectic that ABC News broke the story on its website and began promoting it early on Friday” because the former North Carolina senator — who, y’know, was beating up on himself so bad and wanted nothing more than to come clean with the American people — “had hoped to control the news cycle by making his admission late on a Friday night when the country was watching the Olympics and the long weekend yawned ahead.” Earlier here and here.

Many commentators have questioned whether Edwards was telling the truth about when the affair ended. (Despite her family’s publicly expressed wishes for a paternity test, Rielle Hunter says she won’t allow one; whether this refusal is or is not related to her presumably ongoing financial dependence on Fred Baron’s largesse is not for us to know.) A second question is whether Edwards was telling the truth on ABC when he said he hired Hunter first for her filmmaking skills and began the relationship later, thus dodging charges of having put his mistress on the payroll. Sam Stein at Huffington Post examines chronologies here. Relatedly, Advice Goddess Amy Alkon has this to say about the L.A. Times’s straightfaced description of Hunter as a filmmaker: “Katie, honey, in this town [L.A.], we know to look at imdb.com to see if somebody actually is a filmmaker. This is a good dating tip for you, too, dear, because half the guys you’ll meet at the bar in this town are ‘producers.'”

More: Welcome Michelle Malkin readers.

Yes, I’m being facetious

Where’s the trial lawyer bringing a class action on behalf of all of the people who were defrauded when they gave money to John Edwards’s presidential campaign?  It’s certainly a much more plausible claim of causation, reliance, and financial injury than the typical class action.

More seriously, I hope someone somewhere is investigating whether Fred Baron violated federal campaign finance law when he set aside tens of thousands of dollars to pay Rielle Hunter hush money without disclosing the payments on behalf of Edwards.  Edwards said he was in the Beverly Hilton to help keep the story from becoming public, which makes it seem unlikely he’s telling the truth when he said that he had no knowledge that Baron moved Hunter to California.  Alas, ABC didn’t ask the right follow-up questions, such as how Edwards thought meeting Hunter in a hotel room would help keep the story quiet.  And “Fred Baron” appears nowhere in the New York Times story, even as he is a major fund-raiser for Barack Obama today.  Obama is still running for president, right?

Report: Fred Baron paid for Rielle Hunter’s hideaway

We described the Dallas attorney as poster boy for legal ethics for his astoundingly brazen conduct in the scandal over an asbestos testimony-coaching memo. Now his name is hitting front pages on the John Edwards-Rielle Hunter affair:

Dallas lawyer Fred Baron told The Dallas Morning News today that he paid relocation and housing expenses for the woman that former presidential candidate John Edwards has confessed to having an affair with.

Mr. Baron, who was chairman of Mr. Edwards’ presidential campaign finance committee, said he paid money for Rielle Hunter to move from North Carolina to another location. …

He said Mr. Edwards did not know about the arrangement.

(Gromer Jeffers Jr., “Dallas lawyer Fred Baron paid for Edwards’ mistress to relocate”, Dallas Morning News, Aug. 8).

More coverage of Edwards’s (partial or otherwise) confession: ABC News, AP, Memeorandum, Marc Ambinder, Ben Smith/Politico, News & Observer, Just One Minute, Shaun Mullen/Moderate Voice. Readers will remember that Ted had the story very, very early, before it was much noticed even on the blogs (more). As for Edwards’s own credibility, Mickey Kaus, whose news judgment in pursuing the matter now stands vindicated, has this to say: “There is now one player in this scandal with far less credibility than the National Enquirer, after all.”

More: Byron York at NRO “Corner” quotes the Raleigh News & Observer account with Baron’s statement:

“I decided independently to help two friends and former colleagues rebuild their lives when harassment by supermarket tabloids made it impossible for them to conduct a normal life,” Baron, a Dallas trial lawyer said in a statement, Rob Christensen reports.

“John Edwards was not aware that assistance was provided to anyone involved in this matter,” Baron said. “I did it of my own voilition and without the knowledge, instruction, or suggestion of John Edwards or anyone else. The assistance was offered and accepted without condition.”

York points out:

Hunter and Young, the recipients of Baron’s generosity, were not high-ranking officials in the Edwards campaign. How Baron got to know them and how he decided to fund their move to California, and why he decided to do so without Edwards’ knowledge, might be the subject of more questions as the Edwards matter goes forward.

Blogger Gina Cobb hopes the window of Baron’s generosity is still open:

I am touched and moved by your generosity. I especially like the part about “The assistance was offered and accepted without condition.” Accordingly, I would like to request the same generosity from you. Henceforward, I would like you to rent me an enormous house and pay my living expenses in perpetuity. I can assure you that the assistance you offer will be accepted without condition.

And see Ted’s follow-up post.

The trouble with civil Gideon

In the latest Liability Outlook, I rebut the ABA’s resolution for guaranteed taxpayer funding of civil lawyers for the poor, expanding on my earlier ACS talk:

[The poor] will trade higher rents and higher taxes for the right to legal services that often will not help them.. . . [P]arties with meritorious cases will find it harder to signal to overwhelmed judges that their cases are distinguishable from the vast majority of meritless cases with appointed counsel that the courts will see every day.

Larry Ribstein approves: “The ABA resolution should be seen as what it is: a justification for rent-seeking by the organized bar.”