Prof. Gail Heriot didn’t much care for the course, obligatory under California law, which “turned out to be an annoying piece of propaganda.” (The Right Coast, Dec. 23) (via Bader). Earlier: Aug. 4, Sept. 8, Oct. 6 and Oct. 18, 2005; and other links on our harassment page, all the way back to here.
Cross median into bus’s path, it’s bus owner’s fault
A jury has ordered the owners of an Oklahoma charter bus to pay $2.8 million to country singer Toby Keith and other members of his family after a 2001 accident in which Keith’s father, H.K. Covel, was killed after his truck crossed the median on Interstate 35 into the path of the bus. The family’s lawyer had produced an expert witness to testify that the bus’s brakes should have been in better repair and that the driver should have been better trained. Covel’s truck had been bumped by another vehicle and the family said it filed the suit to establish that the accident wasn’t his fault. (“Jury rules Toby Keith’s father not at fault in crash that killed him”, AP/KTEN, Dec. 24).
No toy donations, thanks: “It’s the liability.”
Earlier this month a spectacular tanker accident burned down several houses in the Boston suburb of Everett, Mass. Ten-year-old Peter-Anthony Hereu of Wellesley felt sorry for the nine kids who’d been burned out of their homes and collected Christmas toys for them. But Everett Mayor John F. Hanlon vetoed the idea, citing recent toy recalls: “If you trip on ice, trip on a stair, trip on a present, we’re going to get sued. I don’t know what to do with the toys. We’re holding on to them until next year.” The story took a happier turn, though, when the Salvation Army volunteered to distribute the presents and shoulder liability if necessary. (Laurel J. Sweet, “‘Insane’ red tape reins in lil’ Santa’s gift sleigh for Everett victims”, Boston Herald, Dec. 24; “’Army’ comes to big-hearted toy boy’s rescue”, Dec. 25)(& welcome WizBang readers; while you’re here, why not help put us back in first place as Best General Legal Blog?).
“The Real Mortgage Fraud”
This spectacle has brought forth recriminations from politicians who picture the lenders as James Bond villains, cackling at the chance to toss hard-working families out on the street. In fact, this course is almost as bad a deal for lenders as it is for borrowers. They typically lose up to half the value of the mortgage on foreclosures.
From listening to the critics, you’d never guess that. Barack Obama denounces “predatory lenders” for “driving low-income families into financial ruin.” Barney Frank (D-Mass.), who chairs the House Financial Services Committee, blames everything on an epidemic of “abusive lending.”
But lenders who made bad decisions are already paying the price. Many mortgage companies have gone bankrupt. And if these loans are so unconscionable, the question is not why the foreclosure rate is so high but why it’s so low. …
The remedies urged by Hillary Clinton, John Edwards and the like include placing a moratorium on foreclosures, freezing teaser rates for five years or more, and forcing lenders to reduce loan amounts to reflect deflated home values. These options are conspicuous for a couple major defects.
The first is that they punish lenders for the failings of borrowers. Why should someone who has kept the terms of a contract be penalized for the benefit of the party that didn’t? A lot of people took a calculated gamble on interest rates and home prices. Had they bet right, they’d be reaping the rewards. Since they bet wrong, they are entitled to bear the consequences.
I wrote about the issue in the Wall Street Journal in April.
SCOTUS will hear voter ID case
Merry Christmas! The Supreme Court has agreed to hear the “most politically divisive case since Bush v. Gore” in 2000.
The simple question is whether we, as voters, can be constitutionally compelled to presented government-issued ID in order to vote.
The #1 Threat to Respectability for Lawyers: Bears
Stephen Colbert’s ThreatDown recently included a law firm’s ad that included, yes, bears. In the ad, a bear is holding a small child, as if to suggest that the firm has struck the right balance between, I suppose, bloodthirst and coddling. The fair and balanced ad critique from a WSJ law blog reader:
“As long as Bingham is allowed to advertise with a bear holding a baby, personal-injury lawyers should be able to do whatever they want.”
Clever as the ad is, it really is no different than the woman who morphs into a tiger for an ad I’ve seen in Louisville. It’s not much different from the ads featuring another local plaintiff’s attorney lifting a car. That ad, I believe, is syndicated among dozens of lawyers across the country.
I wonder, though, if Bingham thought to include the standard disclaimer at the bottom of its ad, “Not an actual client. Also, bear is not a member of the bar.”
(crossposted at catallaxy.net)
Suing for a better education
The old joke goes something like this: If you go to law school, graduate, sue the school for providing a poor education, represent yourself and then win the case … did you really deserve to win?
The cases detailed here may not be quite as clear cut.
A group of students filed a $120 million class action against the American Justice School of Law in Paducah, Ky., on Nov. 17, citing allegations that include tax fraud, false representation to the American Bar Association, racketeering, scheming to defraud students and obstruction of justice. Rust v. American Justice School of Law, No. 5:07CV-191-R (W.D. Ky.).
Late last month, Adam Key, a second-year law student, sued Regent University School of Law, a private Christian school in Virginia Beach, Va., claiming violations of his right to free speech and religion after getting expelled for posting a critique in an online university forum. Key v. Regent University, No. 4:07-CV-04060 (S.D. Texas).
On Nov. 14, John Valente, a second-year student at University of Dayton School of Law in Ohio, filed a complaint against his school, citing negligence in dealing with exam software. Valente v. University of Dayton Law School of Law, No. 07-9593 (Montgomery Co., Ohio, Ct. C.P.).
It’s far from being a trend (yet!), but shouldn’t we expect a more costly legal education to generate demands from those students who slog it out to be chosen from an ever-increasing pool of applicants?
Law school tuition has been increasing at a considerable clip. And if you don’t graduate, it doesn’t matter to you if the value of the degree has risen twice as fast. You’re not a lawyer. (“Don’t Like Your Grade? Sue Your Law School,” The National Law Journal, Dec. 18, 2007.)
Update: I’m not a lawyer, either.
(crossposted at catallaxy.net)
Jamie Leigh Jones & “Halliburton” III
Stephanie Mencimer jumps on the Jamie Leigh Jones bandwagon against arbitration (Dec. 12, Dec. 20) and carefully makes a misleading case:
Employment lawyer Cathy Ventrell-Monsees testified before Congress in October that AAA data show that between January 2003 and March 31, 2007, of the 39 Halliburton cases that went all the way to a decision, Halliburton won 32, a win rate of 82 percent. Plaintiffs in employment litigation face a high bar in court trials as well, but even so, that figure is very high. Employers win about 64 percent of all employment cases at trial in federal court and about half in state court, according to data from the Justice Department’s Bureau of Justice Statistics (BJS).
The problem here is that this is apples and oranges: the 32 arbitration cases include cases that are dismissed on summary judgment, whereas the employment discrimination trials (which constitute well under 10% of all employment discrimination claims brought in court) necessarily omit the decisions where the plaintiffs lost on summary judgment. Moreover, it excludes the 96% of cases submitted to ADR that do not result in a full-fledged arbitration because the employee received a favorable result in mediation. (And that’s before we get to the fact that an arbitration decision is final, while the BJS statistics have no follow-up to see what happens on appeal to those larger plaintiff victories.) As multiple studies show, the typical employment plaintiff does far better in arbitration than in court, for far less expense.
Mencimer also repeats the canard that arbitration is problematic because it is “secretive,” though her ability to retell the case of Jamie Jones refutes that. I also note that earlier this week, I sent a request to Jones’s attorney, Todd Kelly, for a copy of her arbitration filings. (Recall that Jones moved for summary judgment in the arbitration, and only filed in court after helping to choose an arbitrator and spending fifteen months of discovery litigating the arbitration.) He hasn’t responded. If Jones’s arbitration is secret, it’s because she has chosen to make it so.
I’m interviewed…
…at Kevin O’Keefe’s site Real Lawyers Have Blogs (and this is probably a good place for a reminder that I am not in fact a lawyer)(cross-posted from Point of Law).
Jamie Leigh Jones hearing on the Hill
As I suspected, the Jamie Leigh Jones testimony on the Hill quickly devolved away from the Department of Justice’s alleged failures in investigating a rape (the ostensible reason for the hearing) to the completely unrelated issue of her arbitration agreement with KBR and her attempt to conflate KBR with Halliburton, something welcomed by the litigation-lobby blogs that did the same thing. (KBR wasn’t invited to send a representative to the hearing.) Jones misrepresented the arbitration as “secret,” though the arbitration proceeding is just as public as a court proceeding to the extent either party wishes it to be. To that end, I invite Ms. Jones to send me the summary judgment briefs from her pending arbitration proceeding against KBR that led her attorneys to file a second action in court making new allegations against Halliburton, and I will happily post them and provide free publicity analyzing them. From the KBR briefs:
Jones has admitted that she is a party to an arbitration agreement and has invoked and
benefited from the terms of the DRP by participating in a pending arbitration proceeding
involving the same claims. She made a demand for arbitration more than a year before filing this lawsuit, participated in the selection of an arbitrator, exchanged discovery and even moved for summary judgment.
For more on arbitration, see Mark de Bernardo’s testimony and Overlawyered’s arbitration section.