Overlawyered: Chronicling The High Cost Of Our Legal System

Judge Pearson update

(AM post bumped for PM update.)

A judicial panel is still deciding whether the Great American Pants-Suit plaintiff will keep his job as an administrative judge. A delayed decision is expected early next week.

Update to the update: Marc Fisher is reporting that the decision will be to start the bureaucratic process of firing Pearson. Amazingly, the chief ALJ recommended reappointing Pearson&mdash:until Pearson showed his typical good judgment by blasting the chief ALJ in an internal email as “evil,” causing his target to change his mind. Pearson will be entitled to a hearing (and who knows how many rounds of appeals) before he is officially fired; since April, he has been in a fully-paid no-work position as an “attorney-advisor.”

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A second bite at the apple

Minutes after being shot several times, Ibrahim Sidibe and Nicholas Watson identified 16-year old Francesco Kelly as the shooter. Kelly was arrested for the Silver Spring bus stop attack and convicted of first-degree attempted murder in 2003. Maryland’s high state court threw out the conviction on the grounds that Kelly’s inability to call two witnesses after the judge ruled (without a state objection) that their testimony was inadmissible hearsay violated Kelly’s rights. On retrial, a jury acquitted Kelly, to the dismay of Sidibe (who is paralyzed from the shooting) and Watson, who, perhaps implausibly, blames the shooting for his later criminal career. Kelly did not call the two witnesses whose testimony his attorneys previously claimed materially affected his ability to get a fair trial. The lawyers who made that argument to the Maryland Court of Appeals will suffer no consequences. (Ernesto Londoño, “As Suspect Is Acquitted, Shooting Victims Protest”, Washington Post, Aug. 2).

Read On…

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Illinois court: Taxpayers not responsible for porch collapse

In June 2003, there was a tragic porch collapse at an apartment building in Chicago; 13 people were killed and at least 50 more were injured. The quest for deep pockets began; as we discussed in August 2005, even though the porch was on private property, trial lawyers aimed their litigation guns at the city of Chicago, on the theory that Chicago taxpayers have more money than the building owner if city inspectors had done a better job, the accident wouldn’t have happened.

A trial judge bought that argument, but yesterday, in a victory for taxpayers, an appellate court reversed that ruling, holding that, contrary to the theory of the trial lawyers, the city is not a guarantor that nothing bad will ever happen within its city limits. The mere fact that the city inspectors failed to issue violation notices for the porch construction does not make the city financially liable for the collapse; if it did, then the potential to extend liability to taxpayers would be limited only by the imagination of the trial lawyer. Police fail to stop a driver who’s speeding, and he later hits you? Blame the city. Inspectors don’t make your neighbor cut down the dead tree on his property, and it falls on your house during a storm? Blame the city. The possibilities are endless.

The victims of the accident do have a legitimate case — but that legitimate case is against the building landlord, not taxpayers. But those deep pockets aren’t quite deep enough, so the trial lawyers aren’t satisfied with that answer:

But plaintiffs’ lawyers said that was not enough.

Pappas and his companies have about $17 million in insurance coverage, said Terry Ekl, who represents the family of Robert Koranda, who died in the collapse.

“Without the City of Chicago in the case, these families are not going to get anywhere near fair compensation,” Ekl said.

If the Appellate Court’s ruling stands, the plaintiffs would take up the issue with state lawmakers, Murphy said.

“We’re going to be having our clients go down to the legislature and say, ‘You can’t be letting this happen,’ ” Murphy said. “These children cannot have died or be injured in vain.’

Yep; they’re not doing it for their own bank accounts; rather, this is For the Children™.

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Helicopter chases and felony murder, cont’d

Arizona’s East Valley Tribune looks at the question (considered here Jul. 28 first and second post) of whether the fugitive being chased by Phoenix police could be held legally responsible for the crash of two news copters observing the scene. An unrelated local case puts a twist on an otherwise familiar “felony murder” fact pattern:

In an ongoing case, a Phoenix woman faces murder charges in a 2004 robbery attempt at a Mesa check-cashing store following the death of her accomplice. The accomplice was shot and killed by the store’s clerk, who also shot Rhonda Wright multiple times.

Prosecutors reasoned that the clerk would not have pulled his weapon if the assailants had not entered his store.

(Dennis Welch, “Homicide charges in helicopter crash a tough call”, East Valley Tribune, Jul. 29). More on felony murder and the Phoenix crash: Michelle Tsai, “News chopper down”, Slate, Jul. 30.

More: Mike Cernovich identifies another culprit in the chopper crash (Jul. 30).

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Publicity roundup

  • Kind thanks to Oklahoma’s largest newspaper, The Oklahoman, for an editorial recommending that readers “visit… on a regular basis” a certain website that “offers frequent updates on a legal climate gone wild. …an amusing if sad reality check”. (“Batting zero: Litigation reform strikes out” (editorial), Jul. 12; see also 100 Ideas Oklahoma, Jul. 23).

  • All that fine print on contracts — what sort of legal effect does it have, and should you feel obliged to read it? I’m quoted, as are legal bloggers David Rossmiller and Ron Coleman (Katherine Reynolds Lewis, New Orleans Times-Picayune, Jul. 29, and other Newhouse papers)

  • Again with the guru business, and I can’t even fold my legs properly (Joe Palazzolo, “Giuliani Burnishes Conservative Credentials With Choice of Legal Policy Advisers”, Legal Times, Jul. 25)

  • I’m quoted criticizing a federal lawsuit filed against the City of New York for its use of written tests to screen aspiring firefighters’ reading and writing skills (Ari Paul, ” Accuse UFA Head Of Racial Politics; Rip Support of Fire Test”, The Chief/Civil Service Leader, Jul. 27 — not yet available to nonsubscribers). Relevant links here, here, here, and here.

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Running of the bulls

The strength of local animal rights sentiment is not the only reason the event takes place in Pamplona as opposed to Pompano Beach:

…Can you imagine if it were held in America, instead of Spain?

…The running of the bulls would be followed by the running of the plaintiffs lawyers, as they clamor to represent injured parties who, honest your honor, had no idea that such an event could be hazardous to their health. Surely those hold harmless agreements signed by the participants do not absolve public officials of their responsibility to protect people from putting themselves in harm’s way, the class action lawsuit would allege.

(Paul D. Winston, “America not yet ready for running of the bulls”, Business Insurance, Jul. 23).

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Stoneridge: Wherein I am a footnote

Reps. Barney Frank and John Conyers, Jr. spend taxpayer dollars to file a late amicus brief on behalf of plaintiffs’ lawyers and against investors in Stoneridge v. Scientific-Atlanta, taking issue with my Wall Street Journal op-ed on the case. (H/t L.R.) To wit, “A number of commentators have called for the Court to decide this case by reference to policy considerations nowhere found in the statute.” This is wrong: the op-ed explicitly noted that Congress had twice rejected precisely the sort of liability that petitioners were seeking in this case. It is also ironic: civil securities fraud liability was created by judicial fiat out of a statute that had no private right of action.

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Sears wheel alignment class action, cont’d

More coverage of the Sears wheel-alignment case (see May 18) in which lawyers were slated to get $1 million and the client class $2,402 (not $2,402 apiece — $2,402 in the aggregate):

A North Carolina judge has harshly criticized the settlement of a class-action lawsuit in which a Wilmington lawyer and colleagues received $950,000 in fees while consumers who Sears overcharged across the country were reimbursed a total of $2,402.

Superior Court Judge Ben Tennille decried the excessive fees and the lack of effort made to reach customers who had paid too much for wheel alignments at Sears automotive centers. Tennille, who specializes in complex business cases, criticized Sears and the lawyers for trying to hide the settlement results from him.

“Their efforts to keep the results secret are understandable,” Tennille wrote in his May decision. “The shocking incongruity between class benefit and the fees … leave the appearance of collusion and cannot help but to tarnish the public perception of the legal profession.”…

“Doing the math in this case is easy,” the judge wrote. “For each class member who received a $10 check or $4 coupon, plaintiffs’ counsel received just shy of $3,000.”

(Joseph Neff, “Fleeced Sears patrons shorted again in settlement”, Raleigh News & Observer, Jul. 23; Ed Cone, Jul. 24). The settlement was initially brought to a wider audience’s attention by Nick Pace of the Rand Corporation at Consumer Law & Policy blog (May 17).

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Update: restaurant dropped from Josh Hancock suit

St. Louis: “The family of late Cardinals pitcher Josh Hancock dropped a wrongful-death lawsuit against Mike Shannon’s restaurant stemming from the player’s death in April.” The family and its lawyers had been widely criticized (May 24, May 29, etc.) for the breadth of the net they cast in their lawsuit, including the driver and owner of the tow truck into which Hancock smashed, and “the driver of a disabled car on the highway whom the tow truck driver had stopped to help”. (“Shannon’s restaurant dropped from wrongful-death lawsuit”, ESPN, Jun. 30).

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