Overlawyered: Chronicling The High Cost Of Our Legal System

Promised political announcement

The Rudy Giuliani for president campaign this afternoon unveiled its Justice Advisory Committee, which will be advising hizzoner’s campaign on issues of legal policy. It’s headed by former Solicitor General Ted (“no relation”) Olson, and boasts a really stellar array of practicing and academic law talent, including lawprofs Charles Fried, Steve Calabresi, George Priest, and Ronald Cass, former Southern District chief judge Michael Mukasey, and former Justice official Maureen Mahoney, among others. The full list is here (campaign site) or here (PowerLine).

And, yes, that’s my name on the list too. I try not to clutter the site overmuch with my personal candidate preferences, but I find the former NYC mayor to be the clear standout candidate in this year’s White House pack, despite my disagreements with a number of his stances in the past. Early interactions between the legal advisory committee and the candidate have further strengthened my confidence in the kind of leadership he’d provide in office.

That’s enough for the moment, but I just wanted to give readers fair warning and a chance to discount/make allowances in case I happen to mention the various candidates and their doings as the political season proceeds. (& welcome NRO “Bench Memos”, Andrew Sullivan, PowerLine, National Journal BlogoMeter readers. Also, here’s an op-ed by the candidate).

P.S. Newsday has a story interpreting the whole thing as a Supreme Court short-list (which would truly make me the odd man out) but doesn’t mention that most likely picks for the Court would be drawn from the ranks of sitting judges, whose names inevitably could not appear on a list like this.

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Location, Location, Location: The Best & Worst Legal Climates in America

Given the economic costs imposed by today’s legal system (a staggering $865 billion per year according to one recent estimate), it’s surprising more companies don’t take into account a state’s liability climate when making critical decisions like where to open a new plant or invest in existing facilities.

A new report could help change that.

Risky Business: The Annual Boardroom Guide to Litigation in the 50 States provides the first ever ranking of state legal environments that combines economic science, real world corporate experience and input from state legal reform experts – people with the most current intelligence from the front lines.

It builds on a few landmark studies, including the American Tort Reform Association’s “Judicial Hellholes,” the Pacific Research Institute’s U.S. Tort Liability Index, and the Institute for Legal Reform/Harris Interactive survey.

So where are the soundest states – and where is the swampland?

Nebraska and Virginia top the list with the best legal climates. What do they have in common? Reasonable limits on punitive damages, a “rule of law” majority on the state Supreme Court, and Attorneys General who specialize in law enforcement, not grabbing the spotlight at the expense of businesses.

In stark contrast, West Virginia, Rhode Island and Florida round out the bottom of the list. All have activist Supreme Court majorities who consistently rule in favor of trial lawyers. West Virginia has a governor who supports legal reform – a reminder that having a pro-reform governor does not necessarily translate into a sound legal environment.

To see the full list go here.

Steve Hantler

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July 17 roundup

  • Judge Bartnoff declines to reconsider decision against Roy Pearson in dry cleaner pants case [AP/WUSA]
  • Turnabout fair play? Louisville hospital sues trial lawyers, saying they injured its reputation and tried to extort settlement [Courier-Journal]
  • Employer sued for “post-traumatic stress disorder” after pranksters post co-worker’s profile on gay section of HotOrNot.com [McCullagh, CNet]
  • Former Belleville, Ill. cop sues over prosecutor’s letter suggesting his testimony not to be relied on [M.C. Record]
  • British race relations agency demands removal from shelves of Tintin comic book [Telegraph]; 22-year-old in Scotland sentenced for “racially aggravated breach of the peace” after website commentaries that went “beyond the realms of bad taste” [also Telegraph]
  • Farewell to that little patch of floating liberty, the South Carolina river shack [Zincavage]
  • Hey docs: if a plaintiff’s law firm calls your office to talk about a former patient, don’t call back [Medical Economics via KevinMD]
  • Yale Club replies to Judge Bork’s lawsuit [Turkewitz]
  • Arizona businesses aghast at hiring-sanctions law that suspends their license to operate should supervisor be found to have hired an illegal [Arizona Republic]
  • Grants from Bob Barker foundation (Jul. 5, 2001) help fuel animal rights boom in law schools [NLJ]
  • University of Utah settles lawsuit brought by devout Mormon student actress who refused to recite dramatic lines that were blasphemous or obscene [three years ago on Overlawyered]

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Coming up this week

Next up in this summer’s series of weekly guest bloggers is something new for us: a prominent voice from the business community. Steven Hantler, Assistant General Counsel for Government and Regulation at DaimlerChrysler, directs the automaker’s class-action, consumer-litigation and litigation-communications functions; outside the company he’s known as a tireless advocate for lawsuit reform, on which he’s become a veteran of state legislative initiatives and electoral battles. While new to blogging (so far as I’m aware), he’s the author of numerous articles in law reviews and more popular outlets, most recently in the magazine Directorship where he rated and assessed the fairness of each of the fifty states’ court systems from a litigation defense point of view (PDF). He’s also closely associated with the American Justice Partnership, which has links to many of his writings and speeches.

Also, and entirely unrelated to the above, check back tomorrow afternoon, Tuesday, for an announcement which may be of interest to some readers, especially those of a political bent.

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But I’m a litigious cheerleader

A school board upheld the superintendent’s decision to hold the junior varsity cheerleading squad at Yorktown High School in Texas to six members, which meant there was no space for the seventh hopeful, incoming freshman Wycoda Fischer. Now the Fischer family’s lawyer, Lisa Duke of San Antonio’s Anderson & Duke, says the family is preparing court action to get their daughter on the squad. “We have no other option but to move forward with the lawsuit.” “No other option,” of course, being in this case lawyer-speak for “looks like we aren’t going to get our way otherwise”. (Sonny Long, “Cheerleader’s family to sue school district”, Victoria Advocate, Jul. 12; Nota Bene, Jul. 13). More cheerleader suits here, here, and here.

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Video resumes? No thanks

Video resumes have been achieving a certain popularity lately among some job seekers, even beyond fields such as graphics and Web work where skill in video editing and presentation itself counts as a job qualification. Novices are finding it easier to get into the act as online job bazaars such as Jobster, CareerBuilder and Vault begin to offer ways of creating and disseminating video resumes.

Many labor and employment attorneys, however, are warning employers that video resumes open up too many liability issues to be comfortably accepted:

“Just don’t even deal with them,” said Dennis Brown, an attorney in the San Jose, Calif., office of Littler Mendelson whose firm recently advised employers about the dangers of video resumés in a seminar. “My advice to my clients who have asked me about video resumes — and I have had a lot of clients ask lately — is do not accept, do not review video resumes.”

Brown’s main concern with video resumes is that they reveal information about a person’s race, sex, disability, age — all details that could wind up in a discrimination lawsuit…. “This is one of those instances where a little bit of unnecessary knowledge is dangerous.” …

Labor and employment attorney Darlene Smith can’t fathom why employers — knowing the risks of video resumes — would willingly open themselves up to lawsuits. “Actually, I’m dead set against it, to be honest,” said Smith of the Washington office of Boston’s Mintz, Levin, Cohn, Ferris, Glovsky and Popeo. “You definitely, definitely increase your exposure…so why even put yourself in a position to be sued?”

And similarly from Cheryl Behymer of Fisher & Phillips in Atlanta: “You’re opening yourself up to a potential that someone could claim, ‘Well, the reason I didn’t get hired is because you could see my gray hair and you could see that I’m over 40.'”

As for the federal Equal Employment Opportunity Commission, it may come as a relief to learn from an EEOC staff attorney that the agency does not consider video resumes a legal violation in themselves. However, it’s “concerned” that they “could contribute to hiring discrimination”, says the attorney. Other EEOC “concerns”, per the NLJ’s Tresa Baldas: “video resumes could also lead to the exclusion of people who are not tech-savvy, or minority applicants who may not have access to broadband-equipped computers or video cameras.” (“Employers told to stay away from video resumes”, National Law Journal, Jun. 4, not online).

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The Fairness Doctrine

The left-wing websites parroting Senator Durbin’s demand for a return to the bad old days of the Fairness Doctrine might want to consider the slippery-slope repercussions; as Rasmussen reports, “Thirty-four percent (34%) believe the government should ‘require web sites that offer political commentary to present opposing viewpoints.’” More: Fred Thompson, Brian C. Anderson, Jesse Walker, John Berlau, Mike Franc, Adam Thierer. Bush has stated that he would veto any such measure.

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Updates

  • Reversing course, Rhode Island attorney general drops rape charge based on 32-year-old “repressed memory”, thus disappointing some advocates [Volokh; Jul. 10]

  • Massachusetts disciplinary panel files misconduct charges against Judge Ernest Murphy over the “bring me a check and keep quiet” surrender-Dorothy letter he sent to Boston Herald publisher during his (successful) libel suit [Ambrogi; Dec. 23, 2005, May 11, 2007, etc.]

  • California jury rejects tippling speeder’s lawsuit against landowner, automaker, town, etc. in the case we headlined “Shouldn’t Have Put Its Berm Where He Wanted To Skid” [Dec. 24, 2005; Douglas Domel v. DaimlerChrysler Corp., City of Santa Clarita, and Does 1 to 50, inclusive (PC030045Y), L.A. Superior Court, L.A. Daily Journal, no free link]

  • Nominal damages only against German teens accused of scaring ostrich into impotence [UPI/ScienceDaily; Mar. 6]

  • Dubious bill authorizing lawsuits against OPEC may be headed to President’s desk [W$J/CattleNetwork; Jun. 8]

  • Jury convicts press baron Conrad Black on four counts, acquits on nine [Telegraph; Kirkendall, Bainbridge, Ribstein; Mar. 19, Jun. 5]

  • Michigan Supreme Court reinstates reprimand against Geoffrey Fieger over abusive language [NLJ; Jul. 3, Aug. 2, 2006, etc.]

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The $2 litigation

Husain v. Springer (2d Cir. 2007): A silly dispute over a university student election results in federal litigation, and a 44-page decision over a suit where the only remedy sought is $2 plus attorneys’ fees; the district court threw it out, but the Second Circuit, in a 2-1 decision, restores part of the case for further litigation. Neither Chief Judge Jacobs nor Professor Bainbridge is impressed, nor is Eugene Volokh, though he takes issue with the tone of the separate opinion, as Judge Jacobs states that he did not read the majority opinion as a waste of time. The concluding paragraph of the Jacobs opinion:

This prolonged litigation has already cost the school a lot of money that could better have been spent to enrich course offerings or expand student day-care. If this case ends with a verdict for plaintiffs (anything is possible with a jury), the district court will have the opportunity to consider whether the exercise merits an award of attorneys’ fees in excess of one-third of two dollars.

The majority opinion itself takes the strange position that a university’s cancelling of student elections in response to a student newspaper’s violation of election rules by using student-activity funds to endorse specific candidates “chills speech” and thus violates the first amendment.

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