Overlawyered: Chronicling The High Cost Of Our Legal System

Model’s suit: You used the video you took of me

A 37-year-old Jane Doe (who claims to be the host of a national cable tv program) agreed to be videoed rolling around in a bed “looking excited” for $200 in November, and was disturbed to see the results on a YouTube advertising campaign with obviously dubbed orgasmic moans. The punchline in the ad (probably NSFW if your volume is on): “Jewelry works every time.” Or, as my feminist girlfriend grouses every time she sees a tv jewelry ad with far subtler implications, “Your wife is a whore who will only put out for shiny objects.” Cf. also this YouTube copyright violation from Family Guy (NSFW), soon to be taken down by Fox.

Through her attorney, Kevin Mulhearn, she’s sued Szul Jewelers for $5 million. Mulhearn claims there’s no release, which while implausible, may be true. If so, she has a point, though the ad damnum claim is ludicrous: and far more people are going to watch the supposedly image-damaging video now that Mulhearn has gone to the press. And, of course, she didn’t have to roll around on the bed in the first place. (One hopes that I’m not aiding and abetting a publicity stunt for the jeweler.) [Daily News; AP/New York Times]

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Divorce law in the Northeast

Prompted by our post of yesterday about Virginia lawyer-legislators, commenter Hans Bader at his own blog nominates New York, Massachusetts and New Jersey as examples of how bad matrimonial law can get: “the more lawyers are in a state legislature, the more unfair a state’s divorce laws tend to be”. (OpenMarket.org., Jan. 2). Plus: our family law archives are here.

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January 7: Vioxx Settlement panel at AEI

Please register for this event online at http://www.aei.org/event1626.

The AEI Legal Center for the Public Interest and the Federalist Society present:

The Vioxx Settlement

Monday, January 7, 2008, 12:00 p.m.–2:00 p.m.
Wohlstetter Conference Center, Twelfth Floor, AEI
1150 Seventeenth Street, N.W., Washington, D.C. 20036

In 2004, Merck withdrew its pain reliever Vioxx from the market because of new studies showing increased cardiovascular risk. Merck announced that it would not settle any of the tens of thousands of Vioxx lawsuits filed, and set aside over a billion dollars to litigate cases without reserving a penny for damages. After a $254 million verdict in the first Vioxx trial in 2005, some observers predicted over $25 billion in liability for the company. Fifteen trials later, Merck and the plaintiffs’ attorneys announced a settlement of the outstanding personal injury litigation—for under $5 billion. Merck stock rose after the announcement, and is now higher than before it withdrew Vioxx from the market. But some law professors are arguing that a new and unusual provision in the settlement raises ethical concerns.

Why did Merck settle? And why was the settlement for so much less than originally anticipated? Is the Merck settlement different from the Wyeth fen-phen settlement, which was originally announced as a $3.75 billion settlement, but has so far cost more than $20 billion? Will the settlement stand up under legal challenge, and what will remain of the Vioxx litigation if it does?

At this event cosponsored by AEI and the Federalist Society, a panel of experts will explore these and other questions. Speakers include Vanderbilt law professor Richard Nagareda, author of Mass Torts in a World of Settlement; Virginia legal ethics professor George Cohen; author and leading pharmaceutical mass torts defense attorney Mark Herrmann; Andy Birchfield, a member of the Vioxx Plaintiffs’ Steering Committee; and Ted Frank, director of the AEI Legal Center for the Public Interest. AEI resident scholar John E. Calfee will moderate.

11:45 a.m.
Registration and Lunch

12:00 p.m.
Panelists:
Andy Birchfield, Beasley Allen
George Cohen, University of Virginia School of Law
Ted Frank, AEI
Mark Herrmann, Jones Day
Richard Nagareda, Vanderbilt University Law School

Moderator:
John E. Calfee, AEI

2:00 p.m.
Adjournment

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January 3 roundup

  • Surely not something 007 would do: judge reproaches Sean Connery and opponent neighbor over “slash-and-burn” litigation tactics in long-running townhouse dispute [NYLJ, NYTimes]

  • Famed attorney Mark Geragos suing San Francisco Zoo on behalf of tiger maulees [AP/KPIX, Mercury-News, SFist]

  • Clients, lawyers who formerly worked for it have many complaints ethical and otherwise about heavy-advertising San Diego law firm Pacific Law Center [Union-Tribune via San Diego Injury Board]

  • Who knew the demanding workload of law students and federal-judge clerks left any time for (allegedly) tying up, robbing and torturing boyfriends? [Reynolds; Lat]

  • The Scruggs et al prosecution continues to evolve and develop, but at present we haven’t much to add to the energetic threesome of sites that have been leading the news hunt [Rossmiller, Lotus/Folo, YallPolitics]

  • UK man wrongly accused of rape will get public compensation, but minus a fee for bed and board at the prison [Daily Mail]

  • Under Louisville’s new smoking ban, business owners are required to call cops if customers refuse to stop smoking inside [Catallaxy]

  • Garry Wise takes issue with our comments on free speech in Canada, but we may be talking past each other since we never got to the question whether the proper fix is a motion by columnist Steyn to quash the dangerous inquiry [Wise law blog]

  • Injury suits filed against little kids? “It does happen.” More on the Scott Swimm ski-collision case [L.A. Times/Chicago Tribune; earlier]

  • Hope he’ll reconsider: David Giacalone says he’s weary of the legal-ethics beat he’s covered so well, and intends to leave it behind [f/k/a]

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Help us win the ABA contest (and ruin someone’s day…)

The ABA Journal’s contest for best general legal weblog ends momentarily (Wed., Jan. 2) and as of this writing we’re still lagging a mere 50 or so votes behind the front-runner, not an impossible margin you’d think to overtake in a last-minute surge. Unfortunately, we’ve more or less run out of winning tactics that wouldn’t mire us in an embarrassing degree of groveling, nagging, cheating, conniving, etc.

Quite a few folks associated with the American Bar Association have been open-minded and even friendly toward Overlawyered over the years, but we have reason to believe that some others high up in that organization regard us as the web equivalent of hot buttered death. Who can deny that it would be amusing to tick off that second group by having Overlawyered win the ABA’s own contest? Perhaps readers in comments can suggest vote-winning techniques we haven’t thought of. (Beg Michelle Malkin and Glenn Reynolds to send their readers to cast ballots for us?). Okay, here’s one: recommend that your readers vote for us, and we’ll give you a grateful shout-out (within reason) in this column.

P.S. Thanks to Caleb Brown, who does the Cato Institute’s podcast series, for filling in over the holidays. Check out his site Catallaxy.net. And stay tuned for another guestblogger we expect to be joining us in the not too distant future.

[Bumped Wednesday morning for continued prominence. First we pulled to within a dozen votes of QuizLaw, it seems, and now (around midnight EST) they’re back ahead by 40.]

And: a most grateful thanks for the boost to:

P.P.S. Melancholy sequel (just 19 votes short!) here.

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Fewer lawyers in Virginia legislature

Glenn Lewis, president of the Virginia Bar Association, thinks it’s a bad thing that there are only 29 lawyers in the commonwealth’s 100-member House of Delegates (and 16 in its 40-member Senate). In the “President’s Page” column of the association’s magazine, the VBA News Journal, he recently argued that the Old Dominion suffers from “a dearth of lawyer-legislators” to which he attributes such ills as “wrong-minded analyses” as well as shortcomings in drafting. He believes lawyers should hold at least half the seats in the legislature. Despite a marked decline in its percentage of lawyer/legislators, Virginia still well exceeds the national average of 17 percent. (Laurence Hammack, “Fewer lawyers make Virginia’s laws”, Roanoke Times, Dec. 30).

Of course, one possibility is that lawyers do on average bring with them a superior skill set on issues of legislation and governance, but that the voting public no longer trusts the independence of their judgment and their allegiance to the general good as it once did, fearing that they will instead advance the interest of organized factions, perhaps including the self-interest of the legal profession itself.

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War is peace, freedom is slavery, and trial lawyer earmarks are “consumer-friendly”

The Consumerist blog is supposed to be a pro-consumer blog, but it’s amazing how often their political agenda is really a trial-lawyer agenda that hurts consumers. Many of the 2007 bills Carey Greenberg highlights as consumer-friendly are quite the opposite:

  • H.R. 3010: Arbitration Fairness Act of 2007
    What It Does: Raises costs to and reduces choices for consumers and lowers employee wages by forcing consumers and employees to pass up the benefits of mandatory arbitration, whether they wish to or not. More at Overlawyered, and on SSRN.
    Status: Hearings held in both the House and Senate. Likely to be vetoed if passed.

Read On…

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Extra-judicial punishment?

Jacob Sullum (of the often excellent Reason Magazine) makes note of a prosecutor in Arizona who places DUI offenders’ names, mug shots and BAC levels online. Sullum concludes that the prosecutor is “imposing extrajudicial punishment, based on his unilateral conclusion that the penalties prescribed by law for DUI offenses provide an inadequate deterrent.”

Publicizing records that are, by nature, public is normally fine by me. But the prosecutor seems to have created, in a sense, a DUI offender registry. Appearance on sex offender registries is a matter determined by law, not the whim of prosecutors. Also, Mothers Against Drunk Driving won’t endorse the idea:

“Some parts of the Web site are good because they are informational and trying to provide the victim’s perspective,” said Misty Moyse, the spokeswoman for the group. However, she said, “M.A.D.D. would not want to be involved in calling out offenders. We are interested in research- and science-based activities proven to stop drunk driving.”

(crossposted at catallaxy.net)

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California town grapples with judgment 3x its budget

“Half Moon Bay is wrestling with unpleasant options for responding to a court ruling that officials say threatens the ‘very existence of our city government’ – a $36.8 million judgment against the city for turning a proposed housing development site into wetlands.” The town’s annual budget is $10 million. The property in question had become unbuildable when protected wetlands appeared on it, as a result, the owner contended, of negligent town policies affecting water flow and retention. The plaintiff had bought the property in 1993 for $1 million. “Under the worst-case scenario, officials say, Half Moon Bay would become the first Bay Area city forced to dissolve, and the coastal town’s land would become an unincorporated part of San Mateo County.” (John Coté, San Francisco Chronicle, Dec. 18).

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