Overlawyered: Chronicling The High Cost Of Our Legal System

Operation Santa disclaimers, cont’d

We posted last week on a report from Newark, where the U.S. Postal Service was backing off its support for the longstanding Operation Santa toys-for-poor-kids charitable drive and, in particular, demanding that volunteer gift-givers show up in person and sign a lengthy waiver. It turns out the change of policy is nationwide in scope and “at the advice of legal counsel”:

There have been no lawsuits or accusations of impropriety.

Sue Brennan, a spokeswoman for the Postal Service, says the change was made “to protect the children and to protect the integrity of the program and the Postal Service.”

The letters [from needy children] often included home addresses and telephone numbers. “We were giving out information about these kids to people we didn’t know,” she says.

(Larry Copeland, “Volunteers answering letters to Santa now have to sign a clause”, USA Today, Nov. 23)(via ShopFloor). In other changes to the program, the Postal Service will no longer wrap the presents or transport them free to the central post office. A follow-up report in the Star-Ledger finds a reaction of “anger and disappointment among volunteers,” and the donation coordinator at the prominent local law firm of McCarter & English says her firm has decided to designate other charities instead. (Judy Peet, “Donors say ‘bah, humbug’ to Operation Santa rules”, Newark Star-Ledger, Nov. 21).

ADR? Them’s fightin’ words

The recent controversy over attempts by organized lawyerdom to ban or restrict predispute arbitration contracts led to a Wall Street Journal editorial (“Party at Ralph’s”, Nov. 7) which in turn drew forth the following letter to the editor from David S. Rowley of San Diego (Nov. 14):

Although you got the lawyer-money connection in the Democratic anti-arbitration strategy exactly right, you skipped over the bodacious arrogance inherent in the phrase “alternative dispute resolution.” ADR is lawyer-speak for anything other than a lawsuit, making a lawsuit the “regular” way. ADR gets about the same treatment from the bar as “alternative” medicine gets from doctors.

Every time people sit down and reason together, some lawyer is losing money. Why not ban that? A lawsuit is the most expensive, time-consuming, disruptive and unpredictable of all dispute resolution models. That so many people are so quick to sue suggests that the lawyers have sold the masses on the “regular” way. What a tragic commentary on our times.

Earlier: Oct. 18. More thoughts on arbitration: ADRQueen, Oct. 16.

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Defamation-suit roundup

A hearing officer has recommended a reprimand for Boston judge and libel-suit winner Ernest B. Murphy over those “fascinatingly repellent” letters he sent to the publisher of the Boston Herald demanding a settlement of what proved a winning $2 million libel suit (Jessica Van Sack, “Public reprimand urged for Judge Murphy”, Boston Herald, Nov. 21; see Sept. 28, etc.). The operators of the Irish Pub & Inn in Atlantic City, New Jersey are suing the publishers of Philly magazine over their description of the tavern as a “dive bar”, and aren’t buying the magazine’s claim that the description was intended as complimentary. (Michael Klein, Philadelphia Inquirer “Inqlings”, Nov. 18). And a New York lower court judge has declined to order Google/Blogspot to divulge the identity of “Orthomom”, whom a Lawrence, N.Y. school board member had sought to sue on the theory that it was defamatory to have termed her a “bigot”. (Nicole Black, Nov. 18, with links to other blog coverage).

More: And Eugene Volokh (Nov. 27) posts today on a disturbing case from Canada in which a lawyer involved in the shutting down of “hate speech” websites proceeded to sue for defamation — successfully so far in the Ontario courts — over having been called (among other things) an “enemy of free speech”.

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Problem teachers dig in; NYC lawyers up

How many lawyers does it take to eject an underperforming teacher from a Gotham classroom? Apparently quite a few:

The Bloomberg administration is beginning a drive to remove unsatisfactory teachers, hiring new teams of lawyers and consultants who will help principals build cases against tenured teachers who they believe are not up to the job. …

At the center of the effort is a new Teacher Performance Unit of five lawyers, headed by a former prosecutor fresh from convicting a former private school principal who had a sexual relationship with a student….

The plans, at a cost of $1 million a year [including five additional consultants whose job includes documenting underperformance], are described in a memo and an accompanying letter to principals from Schools Chancellor Joel I. Klein. In the letter, he urged principals to help teachers improve but added, “When action must be taken, the disciplinary system for tenured teachers is so time-consuming and burdensome that what is already a stressful task becomes so onerous that relatively few principals are willing to tackle it. As a result, in a typical year only about one-hundredth of 1 percent of tenured teachers are removed for ineffective performance.

“This issue simply must be tackled,” he wrote. …

Randi Weingarten, the president of the city’s teachers union, the United Federation of Teachers, called the lawyers a “teacher gotcha unit” and said she found it “disgusting” that the Education Department would issue such a memo after the release of new school report cards that bluntly grade schools A through F.

(cross-posted from Point of Law). More: Jane Genova isn’t a fan of the initiative (Nov. 27).

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November 26 roundup

All-automotive edition:

  • Court won’t unseal settlement arising from $105 million Aramark/Giants Stadium dramshop case for fear girl’s father will try to get his hands on money [NJLJ, NorthJersey.com, Childs; earlier]
  • Great moments in insurance defense law: you mean it wasn’t a good idea to infiltrate that church meeting to investigate the crash claim? [Turkewitz first, second posts]
  • Columnist Paul Mulshine rejoices: Ninth Circuit decision “if it stands, will lead to the end of the SUV as we know it” [Newark Star-Ledger]
  • Is it unfair — and should it be unlawful? — for insurers to settle crash victims’ claims too early? [Maryland Injury Lawyer Blog]
  • If Ron Krist prevails in shoot-out of Texas plaintiff titans, he vows to have sheriff seize John O’Quinn’s Batmobile [American Lawyer; see also Ted’s take earlier]
  • In much-watched case, Australian high court by 3-2 split upholds highway authority against claim defective bridge design was blameworthy after youth’s dive into shallow water [RTA NSW v. Dederer, Aug. 30]
  • Redesigning Toyota’s occupant restraint system? Clearly another job for the Marshall, Texas courts [SE Texas Record; Point of Law; more]
  • Bench trial results in $55 million verdict against U.S. government after Army employee on business runs red light and paralyzes small child [OC Register]
  • Vision in a purple Gremlin: her Yale Law days shaped Hillary in many ways [Stearns/McClatchy]
  • Zero tolerance for motorists’ blood-alcohol — are we sure we want to go there? [Harsanyi, Reason]
  • Driver falls asleep, so of course Ford must pay [two years ago on Overlawyered; much more on our automotive page]

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Deep pocket files: Detroit Red Wings crash, cont’d

When highly-paid sports figures are hurt in car crashes or other accidents, the potential damages are of course enormous, and the incentives to pursue creative litigation options seem to be accordingly sharp. On Oct. 4 we reported on the legal aftermath of a 1997 rented-limo crash that ended the careers of Detroit Red Wings hockey star Vladimir Konstantinov and team masseur Sergei Mnatsakanov and also injured star player Viacheslav Fetisov, who later returned to the ice. We noted then that lawyers for two of the injured team members were suing a car dealer that sold the vehicle involved, on the perhaps creative theory that by making the seat belts too hard to reach it was legally responsible for the passengers’ non-use of them. Now we learn via the New Jersey Law Journal about a different arena of litigation on the injured players’ behalf. It seems they “sought to cash in on New Jersey’s reputation for pro-policyholder jurisprudence” by filing an action seeking $200 million from the National Hockey League’s providers of auto insurance. However, a “unanimous New Jersey appeals court ruled in 2006 that the carriers were not liable, and affirmed a summary dismissal of the coverage suit. The NHL policy, while it covered team vehicles, did not cover drivers who worked for outside limousine companies, even if the limo companies were hired by teams,” according to the panel’s ruling. Now the New Jersey Supreme Court has declined to review that ruling. (Henry Gottlieb, “NHL’s Insurers Score Hat Trick in N.J. Supreme Court”, New Jersey Law Journal, Oct. 29).

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Update: not a million little refunds

Updating David’s post of Oct. 2: “in the end, only about 1,700 people asked to be reimbursed” over James Frey’s pseudo-memoir, after Random House set aside $2.35 million in a settlement fund. Legal fees: $783,000, or more than $400 per dissatisfied reader. Attorneys Larry Drury and Evan Smith, defending the escapade, spoke of the litigation’s value in deterring publishers from printing inaccurate memoirs in future. (“‘Million Little Pieces’ refund claimed by only 1,700”, AP/CNN, Nov. 3; earlier coverage).

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Crocs footwear fad fades

And, as the night follows the day, there descend the class-action shareholder lawyers, led in this case by San Diego’s not-at-all-tainted Coughlin Stoia of Bill Lerach fame. (“Crocs facing possible suit despite earnings hike”, Northern Colorado Business Report, Nov. 9; Keith DuBay, “Lawyers pounce on Crocs”, ColoradoBiz Magazine/Denver Post, Nov. 15). “Imagine that! Sandals seasonal? Who knew?” (Al Lewis, “Idiots’ lawsuit is nothing but a Croc”, Denver Post, Nov. 16).

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Update: flying-imams suit can proceed

A federal judge has declined to dismiss the controversial lawsuit. “The imams have argued that they were removed because of religious and ethnic bias. The airline says they were ejected solely because of security concerns raised by passengers and crew members.” In August, the imams dropped the most widely criticized portion of the suit, which had named as defendants fellow passengers who had expressed fears for the flight’s security. (Dan Browning, “Flying imams score points in suit vs. US Airways”, Arizona Republic/Minneapolis Star Tribune, Nov. 21; Audrey Hudson, “Judge grants imams day in court”, Washington Times, Nov. 22). See Dec. 6, 2006, Mar. 15, 2007, etc.

More from Ann Althouse (Nov. 21): “Yes, let’s get to the factfinding. No need to throw this out on a motion to dismiss when the plaintiff’s version of the facts must be taken as true.”

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Wildfires and land management suits, cont’d

Controversy continues over the extent to which litigation has tended to obstruct brush and understory removal as well as post-blaze recovery efforts in the fire zones: Damien Schiff (Pacific Legal Foundation), “Misguided litigation magnifies wildfires”, San Francisco Chronicle, Nov. 5); John Berlau, “The Environmentalist Fires”, American Thinker, Oct. 29; BioStock blog, Oct. 5. The Sierra Club defends environmental litigation in this Oct. 23 statement. Last year the Society of American Foresters last year released a study entitled “Forest Service Land Management Litigation 1989-2002”, which is available at the Society site. Earlier: Oct. 24, etc.

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