Overlawyered: Chronicling The High Cost Of Our Legal System

Update: Minor, co-defendants guilty on all charges

“Attorney Paul Minor, former Circuit Judge John Whitfield and Chancery Judge Wes Teel were found guilty Friday of all charges in a judicial bribery conspiracy.” (Anita Lee, “Guilty, guilty, guilty”, Biloxi Sun-Herald, Mar. 31; Jimmie E. Gates, “Minor, 2 others found guilty”, Jackson Clarion-Ledger, Mar. 31). We’ve been covering this corruption story, which arose from the financial coziness with judges of one of Mississippi’s most prominent trial lawyers, since it broke: see Mar. 16, etc., as well as Mar. 22.

More: Anita Lee, “Hard Time”, Biloxi Sun-Herald, Apr. 1.

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Piercing the veil

In our legal system, appeals courts very rarely assess the credibility of witnesses; the theory is that, unlike the appellate court, the jury and trial judge had an opportunity to observe the witness firsthand, and were in the best position to determine whether the witness was telling the truth.

Last October, a Muslim woman sued a car rental company in Michigan small claims court; after the court would not agree to give her a female judge, she refused to take off her veil when testifying. (She was wearing a version of the veil which covered all but her eyes.) The judge explained to her that he needed to be able to see her face to evaluate her credibility, but she still refused; as a consequence, he dismissed her case.

Yesterday, she filed a federal lawsuit against the judge, arguing that he violated her First Amendment rights. (It appears that she asks only that she be allowed to wear a veil while testifying at her next hearing (the car rental company has now sued her); she currently is not seeking monetary damages.)

The issue was discussed extensively on the Volokh Conspiracy last December; Professor Volokh’s conclusion: the judge was probably legally in the right when he dismissed the case.

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Furor over imams’ John Doe suit

“House Republicans are pushing legislation to protect airline passengers from lawsuits for reporting suspicious behavior that might be linked to a terrorist attack. Rep. Steve Pearce, New Mexico Republican, introduced the Protecting Americans Fighting Terrorism Act of 2007 on Thursday, a week after a lawsuit was filed by a group of Muslim imams who were taken off a US Airways flight in November.” (Dec. 6, Mar. 15, Mar. 22; Audrey Hudson, “Hill bill protects flying public”, Washington Times, Mar. 24). Syndicated columnist and blogger Michelle Malkin has been on top of developments (“The John Doe Manifesto”, National Review Online, Mar. 28; blog posts, Mar. 24, Mar. 27, Mar. 28).

The Minneapolis Star-Tribune has a response from the imams:

The imams’ Manhattan attorney, Omar Mohammedi, said the suit “is directed at the airlines and the airport, not passengers.”If someone has a legitimate security concern, we’re not going after that person,” he said. “Or if someone saw them praying and reported that out of ignorant fear, we aren’t going to target that.

“But if someone lied and made a false report with the intention to discriminate, such as in saying the imams made anti-American comments and talked about Iraq when in fact nothing like that ever happened, we have the right to challenge that,” Mohammedi said.

(Pamela Miller, “Attorney offers aid to defendants in imam suit”, Minneapolis Star-Tribune, Mar. 22). USA Today has editorially weighed in on the passengers’ side: “This legal tactic seems designed to intimidate passengers willing to do exactly what authorities have requested — say something about suspicious activity.” (“Our view on post-9/11 travel: Clerics’ lawsuit threatens security of all passengers”, Mar. 27; opposing view by Arsalan Iftikhar). See also Marc Sheppard, American Thinker, Mar. 27.

P.S. And now AP is on the case (“Imams removed from flight may sue passengers”, AP/MSNBC, Mar. 30), and Sen. Fred Thompson (“Suing for Silence”, National Review Online, Mar. 29). The imams have now amended their complaint to cast a seemingly less capacious net for John Does: Audrey Hudson, “Imams narrow target of ‘Does'”, Washington Times, Mar. 31.

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More fen-phen fun

We’ve recently discussed the Kentucky fen-phen scandal, in which the plaintiffs’ lawyers are accused of stealing tens of millions of dollars from their clients; there’s another brewing scandal involving fen-phen lawyers in New York.

Napoli Kaiser Bern (now known as Napoli Bern) represented more than 5,000 plaintiffs who had opted out of the larger class action suit against manufacturer AHP; a whistleblower, or disgruntled ex-employee (take your pick) alleged that Napoli Bern manipulated the amounts of the settlement to be paid to each plaintiff — giving more to its own direct clients — so that Napoli could maximize its own profits at the expense of other law firms.

More important is the allegation that Napoli Bern lied to its clients (and to its own expert witness on ethics) in making them think that the amounts allocated to each plaintiff had been determined by AHP and reviewed by a special master appointed by the court; in fact, it appears that Napoli Bern may have decided unilaterally how much to offer each plaintiff. Yesterday, a New York state judge ruled that the allegations had sufficient merit to reopen the settlement and send the allegations against Napoli Bern to trial.

The stakes are high here; the total amount of this settlement — confidential, but reportedly at least a billion dollars — is not at issue, but the distribution of that money among the lawyers and plaintiffs is. As the judge noted, in theory the penalty could be as severe as requiring Napoli Bern to forfeit all fees earned in the case. (Isn’t mass tort litigation fun? Billions of dollars of Other People’s Money floating around, waiting for lawyers to figure out how to distribute it.)

(Previously covered on Overlawyered: Feb. 2005, Dec. 2001)

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Suit: biometric scanners are religious discrimination

Don’t load up on stocks in that newfangled biometric scanner technology just yet. A federal complaint alleges that workers have a religious right not to sign in using handprints; Matthew Heller has the details and the complaint. Canada has required reasonable accommodation of such beliefs, while New Zealand rejects it. American law simply requires beliefs be “sincerely held.”

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Turnitin suit

Four high school students from Arizona and Virginia are suing the anti-plagiarism service Turnitin, iParadigms LLC, under the copyright laws for archiving copies of their papers in its database. [WaPo] There are entrepreneurs who come up with good ideas for services and products, and entrepreneurs who come up with good ideas for lawsuits against the first group.

Update, March 31: Lots of commenters disagree with me, so it’s encouraging to see Eugene Volokh on my side. Turnitin’s own analysis (pdf) is public.

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“Searching for a snowman in a blizzard”

The number one category of malpractice lawsuits these days? Suits against radiologists for missing signs of breast cancer on mammograms. “Meanwhile, the number of certified mammography facilities is declining. There were about 11 percent fewer places to get mammograms in the United States in 2006 than there were six years earlier, according to the government. That’s 1,101 fewer mammography centers across the country.” (Diane Cochran, “Fear of lawsuits means fewer radiologists read mammograms”, Billings Gazette, Mar. 18)(via KevinMD). More: Nov. 2, 2000, Sept. 24, 2002, May 12, 2003, Oct. 3, 2003, Jun. 14, 2004, Jul. 10, 2005, Dec. 18, 2006.

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