Overlawyered: Chronicling The High Cost Of Our Legal System

Thomas Bentey v. St. Thomas University Law School update

We wrote about this lawsuit when it was first filed in 2006, and were curious what was up with it. Bentey flunked St. Thomas U Law School; he then retained an attorney, Michael Lombardi, to sue numerous defendants alleging that it was consumer fraud for St. Thomas to admit him in the first place and seeking an injunction over Bentey’s contracts grade, suggesting a second person who should’ve flunked law school. The case was transferred from New Jersey to the Southern District of Florida in December 2006, and the multiple defendants filed a joint motion to dismiss in March 2007. The parties then apparently agreed that Bentey would voluntarily dismiss his case in April 2007; the terms of the settlement were not publicly discussed, but I’d be surprised if they weren’t simply a walk-away.

A Thomas Bentey who lives in New Jersey has a public Facebook page, though we make no representation that it’s the same Thomas Bentey.

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Turkewitz April Fools joke still paying dividends

Blogger Eric Turkewitz fooled a lot of people with his April Fools Day blog-post about Supreme Court justices differing amongst themselves whether to recuse themselves from the pending cert petition in the fantasy-baseball case CBC Distribution v. Major League Baseball Advanced Media because of their own participation in a fantasy baseball league–a timely satire of the tsuris caused by individual Supreme Court members’ insistence in holding shares in individual stocks instead of mutual or index funds, which has caused recusals and 4-4 rulings.

But someone at American Lawyer didn’t get the memo when Turkewitz jumped up and said “Gotcha!” The hoax is repeated as fact (without attribution) in an unsigned squib on page 25 of the May 2008 issue of the $385-annual-subscription glossy. The moral is: don’t believe everything you read. Even if it’s in the extensively fact-checked mainstream media. The issue has been out for four weeks, and this post appears to be the first time someone has noticed the error publicly.

(As for the copyright issue in the fantasy baseball case, where baseball players claim intellectual property rights in their statistics, that really is before the Court in its certiorari conference Thursday the 29th; Overlawyered covered the Eighth Circuit opinion by Judge Morris Arnold October 23 and at the lower court level in 2005 and 2006.)

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May 28 roundup

  • More on that New Mexico claim of “electro-sensitive” Wi-Fi allergy: quoted complainant is a longtime activist who’s written an anti-microwave book [VNUNet, USA Today “On Deadline” via ABA Journal]

  • Your wisecracks belong to us: “Giant Wall of Legal Disclaimers” at Monsters Inc. Laugh Floor at Disneyland [Lileks; h/t Carter Wood]

  • New at Point of Law: AAJ commissions a poll on arbitration and gets the results it wants; carbon nanotubes, tomorrow’s asbestos? California will require lawyers operating without professional liability insurance to inform clients of that fact (earlier here and here); and much more.

  • Actuaries being sued for underestimating funding woes of public pension plans [NY Times via ABA Journal]

  • City of Santa Monica and other defendants will pay $21 million to wrap up lawsuits from elderly driver’s 2003 rampage through downtown farmers’ market [L.A. Times; earlier]

  • Sequel to Giants Stadium/Aramark dramshop case, which won a gigantic award later set aside, is fee claim by fired lawyer for plaintiff [NJLJ; Rosemarie Arnold site]

  • Privacy law with an asterisk: federal law curbing access to drivers license databases has exemption that lets lawyers purchase personal data to help in litigation [Daily Business Review]

  • Terror of FEMA: formaldehyde in Katrina trailers looks to emerge as mass toxic injury claim, and maybe we’ll find out fifteen years hence whether there was anything to it [AP/NOCB]

  • Suit by “ABC” firm alleges that Yellow Book let other advertisers improperly sneak in with earlier alphabetical entries [Madison County Record]

  • Gun law compliance, something for the little people? A tale from Chicago’s Board of Aldermen [Sun-Times, Ald. Richard Mell]

  • Think twice about commissioning a mural for your building since federal law may restrain you from reclaiming the wall at a later date [four years ago on Overlawyered]

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More tweaks to the site

As we’ve begun filling in tags to the thousands of posts, the “tag cloud” became less and less interesting and more and more distracting on the front page.  We’ve moved it to a back page and replaced it with three hand-made lists of tags:

  • Categories, with tags roughly corresponding to the categories from the old website;
  • Favorite topics, featuring tags corresponding to popular reader favorites from years past and today; and
  • Good copy, attorneys and law firms you want to read about.

Are we leaving anything out in those tag lists you’d like to see there?

Don’t hesitate to drop me an e-mail with a link if you see something that was improperly auto-tagged or is missing a tag that would be useful.

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Stripper: getting tipsy was part of my job

Whatever happened to the old ginger-ale “champagne” ruse? “A woman contends that her job as a stripper caused her to have a one-car wreck on her way home from work last year, according to a lawsuit filed in Jefferson County Circuit Court. Patsy Hamaker’s suit says part of her job as a dancer at The Furnace club in Birmingham involved encouraging customers to buy her alcoholic drinks.” (Eric Velasco, “Stripper’s suit in Jefferson County court says her job led to wreck, injuries”, Birmingham News, May 27).

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Another thought on Waddah Mustapha v. Culligan of Canada, the fly-in-bottled-water case

The Canadian Supreme Court overturned the lower court C$341,000 decision in Mustapha v. Culligan of Canada, but it’s worth noting that the result would have been different in the United States. To recap, Waddah “Martin” Mustapha saw (but did not consume) a fly in a bottled water. As Yoni Goldstein memorably recounts:

[Mustapha] proceeded to vomit all over his house, and later experienced problems drinking anything with water in it, showering (because that also involves water) and going to work and having sex (where, presumably, water was involved in some major, incapacitating way).

Culligan did not contest that it was negligent; it did not even contest that the sight of the fly caused Mustapha’s injuries. It simply argued that Mustapha’s idiosyncratic reaction was not its concern, and that it should only be liable for the reaction of the reasonable person who had seen a fly in a bottle of water. In the US, that argument does not fly: basic 1L Torts teaches the “eggshell plaintiff” rule–you take the plaintiff as you find him or her. Canada differs. “The law expects reasonable fortitude and robustness of its citizens and will not impose liability for the exceptional frailty of certain individuals.” Canada is thus less prone to the sort of absurd claims that Mustapha raised than the United States is, as, if the courts follow the law, there is less incentive to exaggerate the scope of injury. In a US case, the defendant would have to engage in expensive pre-trial discovery to demonstrate that Mustapha’s psychological disorders were not caused by the incident, and would still have to go to a jury if Mustapha could produce an expert for hire who would testify differently. According to the Canadian Supreme Court, the appropriate approach is to simply use common sense and toss the case. But, as the lower court decision shows, there are certainly some in the judiciary who wish to move the Canadian model closer to the disastrous American one.

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Barack Obama and tort reform: is he really bipartisan?

In an interview of Senator Barack Obama on Fox News, Chris Wallace questioned Obama’s claims of being a post-partisan leader who reached across the aisle.  In response, Obama identified his support of the Class Action Fairness Act tort reform bill.  Is this persuasive evidence of bipartisan behavior?  I explore the question in today’s Examiner.

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New features: browse by tag, related posts

Continuing our WordPress site overhaul, we’ve added two new ways to navigate through Overlawyered to find relevant past material.

Our new browse by tag page lets you zero in quickly on posts that relate to your topic of interest or locality. We’ve assembled an uneasy mix of the old post categories, automatically generated new tags on old posts (e.g., “Detroit” will yield stories linking to the Detroit News even when there is no local angle) and tags newly selected by Ted and me, with the balance, we assume, gradually shifting toward the latter over time. We’ve tended to avoid autotagging the most common terms as well as the very largest cities and states; remember that you can still try our regular search function.

And here’s a neat trick: by tinkering with tag URLs, you can combine tags to find a subset of posts with overlapping tags. For example, the URL http://overlawyered.com/tag/illinois+family-law/ calls up all posts that are tagged with both “Illinois” and “family law”. (Note the required placement of the plus sign and hyphen(s).) Likewise with “Bill Lerach” + “politics” or whatever other combination of tags you like.

Finally, we’re experimenting on individual posts with suggested “Related posts”. These are auto-generated by the tag program based on shared tags, so they will inevitably be less than perfect, but may make a helpful place to start.

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“Whatever is Greek, wherever in the world, we want back.”

Why does the idea of cultural property have so many advocates? “It seems to establish a bulwark against the plunder of antiquities.” And yet how quickly it’s turned into a way of looting premodern artifacts from Western owners whose claim of title is stronger than that of foreign governments or indigenous/Indian tribes. “But if cultural property really did exist, the Enlightenment museum would be an example of it: an institution that evolved, almost uniquely, out of Western civilization. And the cultural property movement could be seen as a persistent attempt to undermine it. And take illicit possession.” (Edward Rothstein, “Antiquities, the World Is Your Homeland”, New York Times, May 27).

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