Overlawyered: Chronicling The High Cost Of Our Legal System

U.K.: Recliner training?

Resting the wrong way in the U.K. Midlands:

…the men and women of the Greater Manchester fire service have been told they can only rest in prescribed reclining chairs – and only after they have been trained to use them.

Now, however, three experienced firemen are facing disciplinary action over “involvement in the use of unauthorised rest facilities”. …

Many fire stations have already been transformed by health and safety rules with the disappearance of the traditional fireman’s pole, deemed too dangerous to use.

(James Tozer, “Firemen feel the heat from health and safety for sleeping on the floor”, Daily Mail, Jun. 1).

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“Anatomy of a Mass Tort”

Experienced defense counsel Beck and Herrmann have a must-read post summarizing the lifecycle of a mass tort., touching on many of the themes Walter and I have covered in the past: the at-best parasitic irrelevance of the plaintiffs’ bar to the safety of the product (at worst, trial lawyers are counterproductive); the feeding frenzy of peripheral litigation and ambulance-chasing to sign up clients; the irrelevancies of game-show style trials to the ultimate issues of the case, much less public safety.

Beck and Herrmann’s model could certainly use some expansion; if anything, they understate the absurdity of the status quo. There’s no mention of the peripheral “consumer-fraud” class actions on behalf of the customers who have suffered no injury; the expense and harassment of discovery; the jockeying of the plaintiffs’ bar to plant misleading stories in the press to taint the jury; the efforts to use taxpayer resources of various trial-lawyer-friendly state attorney generals to harass the defendant; the lobbying by the plaintiffs’ bar to force the defendant to settle before plaintiffs have to test their complaints’ theories in the judicial system; the mass fraud by trial lawyers that almost invariably accompanies the mass tort.

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15 Minutes of Fame + Lawyers = Bankruptcy

For a brief period in 2004, Jessica Cutler was the hottest story in Washington. Cutler was the Senate aide who blogged at Washingtonienne about her sexual experiences with various Beltway insiders. After being exposed (pun intended), Cutler parlayed her notoriety into a six-figure book deal and Playboy photo shoot.

Unfortunately for Cutler, she had provided enough details in her blog for people to deduce the identity of some of her sexual partners. One of those, Robert Steinbuch, decided to sue her for $20 million for public disclosure of private facts (i.e., “invasion of privacy”) — thereby becoming only one of many recent examples of someone complaining about publicity… by filing a lawsuit that publicizes the acts he allegedly wants to keep secret.

In any case, Cutler began running into problems with her lawyers — namely, that they wanted her to pay them, and she had a different idea. We covered this in June 2006 (and see the Wonkette link in the comments). Now Cutler has filed for bankruptcy. Of course, we don’t know where all of her money went, but we know a good chunk of it went to her attorneys. Good luck collecting that $20 million, Mr. Steinbuch.

(As for collecting, Steinbuch had added some deep pockets to one of his lawsuits against Cutler — Hyperion Press (which published Cutler’s book), Disney (which owns Hyperion), HBO (which purchased the television rights to her story), and Time Warner (which owns HBO) — but that lawsuit, which Steinbuch filed in Arkansas, was dismissed in February on the grounds that it didn’t belong in Arkansas. Steinbuch has appealed, but his chances of success appear low, and his claims against HBO, Time Warner, and Disney are completely meritless anyway.)

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“Should they disbar TuberculEsq?”

David Giacalone has some thoughts on now-notorious Atlanta personal injury lawyer Andrew J. Speaker, who doesn’t seem to have lived up very well to the Lakoff-prescribed billing of “public protection attorney” (Jun. 1). But see: Elizabeth Whelan, in the New York Post, thinks the pillorying of Speaker’s decision to fly home has been overdone (“Free Andrew! Hysteria and the TB Case”, Jun. 2). Updates: Jul. 8 (some passengers sue Speaker), Dec. 2 (no one flying with him caught TB).

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CAFA: One plaintiff’s-side view

Victor M. Diaz, Jr., who has served as vice-chair of ATLA’s aviation section among other honors in representing the plaintiff’s bar, writes in Florida’s Daily Business Review taking issue with some of his colleagues’ doomsaying about the Class Action Fairness Act, which he says has proved “no calamity after all“:

More than two years after President Bush signed CAFA into law, these concerns are proving to be greatly exaggerated. CAFA should not be feared by the plaintiffs bar.

While the days of cases filed in remote, plaintiff-friendly state court venues may be over, CAFA has led to better representation of classes by plaintiffs attorneys and better outcomes for class members. On the whole, the potential shift of nearly all class actions to federal court has elevated the class action bar and meant better quality judicial review of corporate class-wide abuses.

As with Congress’s earlier reform of shareholder suits, the major effect seems to be not to choke off litigation, but to improve its average quality (cross-posted from Point of Law).

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Germans hesitate to join nanny parade

The German government, like others around the world, is being pressed by public health specialists to get into the business of reshaping citizens’ diets and hectoring the populace over its indulgent eating habits. However, reports The Scotsman, there are some distinctive obstacles to this happening, even aside from Chancellor Angela Merkel’s fondness for baking a cake at home every weekend:

…the legacy of Germany’s Nazi past is forcing the Bundesregierung, or federal government, to forget TV adverts giving millions advice on avoiding fatty foods and taking exercise.

The government is banned from buying advertising space on TV by the country’s own constitution, which was framed in the wake of the Second World War. Those who drew up the laws remembered how the Nazis were masters of using the cinema for propaganda and feared giving any government the same kind of power. They were also nervous that governments might use advertising leverage to put pressure on broadcasters.

One insider quipped: “The last time we had a non-smoking vegetarian who wanted to tell us what to do, it wasn’t a happy experience.”

(Murdo MacLeod, “German fatties fear the wurst”, The Scotsman, May 13).

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Scotts sues TerraCycle

According to litigation filed by giant gardening-supplies company Scotts Miracle-Gro, the fertilizertradedress.jpg package on the right infringes the “trade dress” of the package on the left. Comments reader/blogger Amy Alkon: “Terracycle’s package looks like Scotts’ like Betty White looks like Shaquille O’Neill.” TerraCycle has set up a website called SuedByScotts.com, and bad publicity for the larger firm has been ubiquitous. A sampling: Inc. magazine, Sustainable is Good, Consumerist, 10,000 Marshmallows.

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eHarmony’s 29 Dimensions of… Litigation

The online dating service eHarmony promises to match its customers up based on 29 Dimensions of Compatibility. Apparently one dimension they didn’t think about was how litigation-happy some people might be. Now eHarmony is being sued for “sexual orientation discrimination” in California by a woman named Linda Carlson who claims she was “denied access” to eHarmony because she’s a lesbian. She’s seeking class action status plus unspecified damages, and wants the court to order eHarmony to change its policies.

Ronald Coleman of Likelihood of Success points out that the claim being made by the plaintiffs is not a traditional discrimination claim; the plaintiff is not claiming that eHarmony refused to accept her as a customer. Rather, her complaint is that the site simply doesn’t provide services that same sex couples want:

The plaintiffs here are actually arguing that eHarmony is obligated not just to open up its existing service to people of all sexual predilections. It is requiring eHarmony to actually provide new services that it claims neither an interest nor any degree of expertise in, and which may require an outlay of millions of dollars. Let’s not even get into the moral preferences of the owners and management, which are presumed irrelevant by laws which outlaw discrimination against homosexuals or, in this case, may mandate the provision of special services to them.

For what it’s worth, eHarmony’s founder claims that the reason they don’t provide these services is not because they want to discriminate, but because they have expertise in matching up men and women, but not same-sex couples. That’s okay; I’m sure that trial lawyers and a judge can figure out how to run the business.

Readers of Overlawyered may remember that this is not the first time eHarmony has been sued; in March 2006 we covered a suit filed in California by (who else) a lawyer, who was denied service by eHarmony because he was still married and claimed this was “marital status discrimination.”