Overlawyered: Chronicling The High Cost Of Our Legal System

Jay Greene on NYT bullying story

In addition to being a colleague of mine at the Manhattan Institute, Jay Greene is 1) a prominent national expert on education who 2) is based in the college town of Fayetteville, Ark., so I was eager to hear what he had to say about Dan Barry’s New York Times article of last month which called shame on the Fayetteville schools for their supposed toleration of the horrendous bullying of an unoffending high school student by the name of Billy Wolfe. Today Greene has a blog post on the case which concludes, as did I in my Apr. 8 post, that Barry’s coverage was by no stretch of the imagination responsible or balanced. Greene zeroes in on Barry’s assertions that “It remains unclear why Billy became a target…” and that “[Billy] has received a few suspensions for misbehavior, though none for bullying,” both of which appear, at best, grossly misleading in the light of a police report aired in the Northwest Arkansas Times detailing Billy’s alleged aggressions against other students, physical and otherwise. Greene also observes that his inquiry to the New York Times public editor about the discrepancies has gone unanswered aside from a form response. He adds:

Finding the police report and collecting all of the interviews found in the NW AR Times article would have required — uhm — reporting. It was much easier to take the story that the Wolfes’ attorney was peddling. And yes, the Wolfes are suing some of the other students and are planning to sue the school district. Barry’s article may read like a plaintiff’s brief because there actually is a plaintiff’s brief out there. …

Unfortunately, the Fayetteville School District is inexperienced with handing national reporters and they are handcuffed in responding to accusations because of student privacy issues and a pending lawsuit. Dan Barry from the NYT was able to ride roughshod over a small town school district. Maybe the Gray Lady is the most obvious bully here.

The full post is here. Among other local coverage not linked in my earlier post is an editorial in the Northwest Arkansas Times, Mar. 30, and John Brummett, “Bullies Crying ‘Wolfe'”, Northwest Arkansas Morning News, Apr. 2.

P.S. And now Gawker is on it.

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“Sued for ‘OK’ eBay feedback”

Steve Shellhorn didn’t leave negative feedback after a not entirely satisfactory transaction on the online auction site, but “neutral” feedback can harm reputation too, according to the seller’s suit. Although a judge in the plaintiff’s Buncombe County, N.C. home court threw out the action, “It cost Shellhorn $500 to hire an attorney. ‘I’m very leery. I won’t leave feedback for people anymore,’ he said.” (Jesse Jones, KING5 News (Seattle), Apr. 24).

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Second Circuit tosses Whitman case

Longtime Overlawyered readers may remember my tut-tutting the original proprietor of the Bizarro-Overlawyered site for misrepresenting a Southern District of New York opinion by claiming that its disposition of a Rule 12(b)(6) motion was an affirmative finding of fact that Christine Todd Whitman had acted improperly in the wake of the September 11 attacks. (In fact, all the court did was rule that the case could go forward on the allegations of the plaintiffs’ complaint.) The Second Circuit has now spanked the district court for going even that far, and tossed the entire case, ruling that this was not an appropriate inquiry for the judicial branch, given the risk that officials will be deterred from making public statements if they could be held liable for allegedly making a mistake. Good analysis of Benzman v. Whitman by Stephen Bergstein via Bashman.

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Symphonic premiere canceled as EU workplace-noise violation

The newly composed work tested at 97.4 decibels, so the performance by the Bavarian Radio Symphony Orchestra was called off. “The cancellation is, so far, probably the most extreme consequence of the new law, which requires employers in Europe to limit workers’ exposure to potentially damaging noise and which took effect for the entertainment industry this month.” (Sarah Lyall, “No Fortissimo? Symphony Told to Keep It Down”, New York Times, Apr. 20). For more on British and EU workplace-noise rules and their application to Scottish bagpipes, barking police dogs, gunfire during infantry training, military brass bands, and so forth, see Nov. 19, 2005.

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Response re Terry v. Lindell

In June 2004, we wrote:

In the complicated surgery to correct scoliosis, screws and rods are inserted and bone added into the spine. The risk of nerve damage or paralysis is such that there is something called the Stagnara wake up test, whereby the patient is woken during surgery to ensure she can move her feet. In 1999, however, Joshua Terry was one of the unfortunate 0.1% who was paralyzed during surgery. And, according to the newspaper account, his lawyer, Jay Kelley, found four surgeons to testify against defendant Dr. Ernest Lindell that “paralysis was not a potential complication” from surgery on the spine to correct scoliosis. A Lucas County, Ohio jury awarded $8.4 million to Mr. Terry and another million to his parents. And Dr. Lindell will no longer perform spinal surgery. (“Paralyzed area man wins $10M judgment”, Toledo Blade, Jun. 16; P. Stagnara, et al., “Functional monitoring of spinal cord activity during spinal surgery”, Clin. Orthop., 1973; 93: 173-78).

Perhaps there was malpractice in this case; paralysis is relatively rare, and one can’t tell the merits one way or the other from cursory press coverage. (Terry claims that Lindell “lost control” of an instrument during surgery, and it’s unclear whether that claim is the result of concrete evidence or a wishful inference.)

If the press account is correct, the plaintiffs’ attorney put a finger on the scale through expert testimony claiming that paralysis doesn’t happen except through negligence. Even a relatively well-educated lay jury isn’t well situated to resolve which expert is telling the truth. It’s another example of why the current litigation system is poorly situated to resolve disputes of this sort.

Jay Kelley writes us:

Read On…

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“Pelosi betrays her own House for a slew of trial lawyers”

We’ve previously covered the Senate’s boon to trial lawyers at the expense of consumers and shareholders, the Consumer Product Safety Commission Act, S. 2663: Feb. 20; Feb. 25; Mar. 5. (The bill was amended somewhat since we complained but Democrats, on a party line vote, tabled critical amendments to prohibit the use of contingent-fee attorneys and permit prevailing parties to recover attorneys’ fees.) The House passed a somewhat more sensible version of the bill unanimously, but Pelosi, for some reason, is trying to bypass her chamber’s proponents in constructing the “conference committee” that will work out the differences between the bills in favor of those of trial lawyers. Today’s Washington Examiner has the unholy details.

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April 24 roundup

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Nearer, my Capitol, to thee

Education expert Jay Greene, a colleague of mine at the Manhattan Institute, has just launched his own blog, which is likely to be of wide interest. He gets off to a good start (Apr. 19) with a post based on a simple but clever idea for measuring influence:

If you stand on the steps of a state capitol building and throw a rock (with a really strong arm), the first building you can hit has a good chance of being the headquarters of the state teacher union. For interest groups, proximity to the capitol is a way of displaying power and influence. The teacher union, more than any other interest group, strives to be the closest. They want to remind everyone that among powerful interest groups, they are the most powerful – a prince among princes.

To see who has the most powerful digs, Jonathan Butcher and I actually bothered to measure just how close interest group offices are to state capitol buildings. We started with a list of the 25 most influential interest groups, as compiled by Fortune magazine. We then used Google Maps to plot the location of the state offices of those 25 interest groups and measured the distance to the capitol building.

The results are illuminating. Of the 25 most influential interest groups, the teacher union is the closest in 14 of the 50 states. The labor union, AFL-CIO, is the closest in 7 states. The American Association of Retired Persons (AARP) and National Federation of Independent Business are the closest in 5 states, each. The trial lawyers lobby, the American Association for Justice, is the closest in 4 states.

The teacher union is among the four closest interest groups in 27 states. The trial lawyers are in the top four in 22 states, followed by the AARP in 20 states and the AFL-CIO in 19 states. …

If we gave four points for being closest, three for being the second closest, two for being third closest, and one for being the fourth closest, teacher unions would have a total of 85 points. No other group would have more than 60 points. Only four of the 25 groups would have above 40 points, with the trial lawyers, AARP, and AFL-CIO joining the teacher union in this elite group.

As Greene notes, the point of capitol proximity may be less a practical one (shaving a minute or two off the time needed to drop by to do some influencing) as that of making “a visible display of their power and influence”, like having the most sought-after seats at a sporting event. He’s followed with a state-by-state rundown of proximity here.

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