Overlawyered: Chronicling The High Cost Of Our Legal System

“Business has not trounced the trial lawyers”

My latest column in the Times Online explains why Business Week and some other media outlets are being at best premature (and that’s putting it diplomatically) in declaring the American plaintiff’s bar down for the count. Opening excerpt:

America’s litigation fever is cooling off, or so one hears. Merck & Co is doing reasonably well defending suits over its painkiller Vioxx, while actions blaming foodmakers for obesity have sputtered. Doctors’ malpractice-suit payouts are said to be flat (at what by other countries’ standards are still unthinkably high levels). Last month, the Supreme Court ruled on a punitive damage case in favor of tobacco giant Philip Morris, which has become a Wall Street favorite after wrestling down its perceived legal risks. Nearly every American politician claims to be on board with reform, even the nation’s most famous plaintiff’s-lawyer-made-good: “We do have too many lawsuits”, said John Edwards during the 2004 Presidential debates. A recent Business Week cover sums it up: “How Business Trounced the Trial Lawyers”.

And yet one wonders whether a contest is being called prematurely. … To call a high-water mark is going to require more evidence than we’ve seen so far.

P.S. Other reactions to the Business Week cover story came from Bizzyblog (“Year’s Most Unintentionally Comical”), Roger Parloff (article itself was better than headline), and me at Point of Law (see also this WSJ column).

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March 13 roundup

  • $47.5 million verdict in Vioxx retrial. [Point of Law]

  • D.C. Circuit has big Second Amendment opinion striking down DC gun ban; Brady Center inconsistent about its view of democracy versus the constitution. [Bader; NRO symposium; 18 posts at Volokh]

  • Alien Tort Statute: legal imperialism? [Point of Law]

  • Michigan Justice Elizabeth Weaver continues to lose it [ATL; People v. Parsons]

  • Update in Navarro $217 million verdict: Defendant doctors in lawsuit now suing their own attorneys [St. Pete Times (h/t F.R.)]

  • “What did you say about my kiwi?” bill in California [Legal Pad]

  • Yeah, that will resolve the housing crisis: group intervenes to protest plan for new apartment complex under fair housing laws because “only” 16 units out of 299 have three bedrooms. [Boston Globe (h/t A.I.)]

  • Norm-shifting in the post-MySpace age. [Barnett @ Volokh v. Taylor]

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Profitable angles in harlotry law, cont’d

Washington, D.C. has been on edge lately over the news that Deborah Jeane Palfrey, facing charges of running a pricey call girl operation in the capital, wants to sell her list of 10,000 clients and 46 pounds of phone records to the highest bidder to raise money for her legal defense. (Scott McCabe, “Accused D.C. madame’s client list remains in limbo”, Washington Examiner, Mar. 10; Fox News, Mar. 9; Anne Schroeder, Politico, Mar. 1; TPM Muckraker, Dec. 7, Mar. 1, Mar. 7, Mar. 9). Palfrey’s attorney and adviser, Montgomery Blair Sibley, says numerous overtures for purchase have already come in, that efforts are underway aimed at “mining the data to identify individuals,” and that his client will do her part in cooperating with the buyer of the data to identify clients. Attorney Sibley is quoted in the Examiner as teasing journalists about the newsworthy nature of the client names: “You won’t be disappointed.”

Something about the name of Palfrey’s attorney, Montgomery Blair Sibley, rang a bell from the past. Was it the historical resonance of his having been named after a member of Lincoln’s cabinet? Or his having once headed an organization called Forfeiture Endangers American Rights, which I’ve had occasion to cite favorably for its work against police and prosecutorial abuses? No, that wasn’t it. Oh, wait, here it is: an Overlawyered entry from March 7 of last year about how Arthur Vanmoor, a South Florida man accused of running one of the largest prostitution rings in the Southeast, had taken the step of suing his own former clients for getting him in trouble (seems they had signed credit card slips which read “Cardholder states that this transaction is not for illegal activity”). As I noted then, “One wonders whether the possibility of [publicity for the “johns” being sued] might be one factor influencing the prospective settlement value, if any, of the new round of suits.” Vanmoor’s attorney appeared on Tucker Carlson’s “The Situation” to discuss the strategem, with entertaining results. His name? Montgomery Sibley.

Maybe Mr. Sibley can adopt as a new promotional slogan for his law practice, “Turning your client lists into gold.”

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By reader acclaim: “Woman holds door open for man at Pizza Hut…”

“…then sues both.” According to her lawyer, Tom Maag, Amanda Verett was holding open the door for co-defendant Clarence Jackson when he “grabbed the door in such a fashion that it caused the door to suddenly and sharply move,” resulting in injuries for which Ms. Verett wants upwards of $150,000 from Jackson, the restaurant, or some combination of both. It happened in Edwardsville, Ill., in lawsuit-famed Madison County, where Thomas Maag is a member of a famous family of lawyers (Oct. 29, 2004). (Steve Gonzalez, Madison County Record, Mar. 8).

P.S. The website of the Dennis & Verett Law Office of Edwardsville indicates that Amanda Bradley Verett was admitted to the Illinois Bar in 2003 and is a member of the Association of Trial Lawyers of America, now renamed the American Association for Justice. (hat tip: reader David Nowlan)

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Fieger files: $30M medical malpractice verdict tossed in South Carolina

Geoffrey Fieger (May 5, 2006; Mar. 24, 2005; Mar. 13, 2005; Aug. 31, 2004; etc.) got some favorable rulings in a South Carolina medical malpractice case. Fieger claims that the hospital fatally overdosed the plaintiff’s dead husband; the hospital argues that, as an autopsy showed, he died of a rare heart condition. Because the hospital only had copies of the original records, and not the original records themselves, Fieger persuaded the judge to instruct the jury that the defendant hospital had engaged in a cover-up and that the jury could draw an adverse inference; moreover, the jury wasn’t told about a side-deal Fieger cut with a co-defendant that apparently resulted in that defendant making only a token defense at trial in exchange for a limitation of damages, a sequence that a non-settling co-defendant doctor protested futilely as Fieger directed his closing argument at her, calling her a killer and a liar. Fieger asked for $55 million including punitives, the jury returned $30 million in “compensatory” damages but the judge threw the whole verdict out as obviously the product of passion or prejudice. Fieger says he looks forward to retrying the case. The case was brought before South Carolina capped malpractice awards. (John Monk, “$30 million verdict overturned”, The State, Mar. 9; John Monk, “$30 Million awarded in death of physician”, The State, Aug. 12).

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California wants to be your parent

If there’s a backlash underway against paternalism, you’d never know it from the crowded agenda of “nanny bills” under consideration in Sacramento, which include a ban on smoking in cars with kids present and proposed restrictions on keeping unspayed cats or dogs as pets. (Nancy Vogel, “Big mother is watching with new laws in mind”, Los Angeles Times, Mar. 8).

P.S. Regarding an Illinois version of the cigarettes-in-cars idea, Jacob Sullum has the good headline: “I Do Miss Mom, but At Least the Car is Smoke Free”.

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Chutzpah, railroad edition

In 2004, Phillip Waisonovitz accidentally killed his co-worker, Robert Ard, by backing over him with a train. Ard’s family sued, claiming negligent supervision, and just won $4.3 million from the employer, Metro-North Railroad. So that settles that, right? Close, but not quite. As the Associated Press explains:

Phillip Waisonovitz, the engineer who backed up the engine, became distraught after learning it had struck Ard.

(I’ll wager Ard wasn’t thrilled, either!)

He has been out of work on disability since then with a diagnosis of post-traumatic stress disorder.

Waisonovitz has filed suit against the railroad company and Ard’s estate. That case is pending.

In case you think you misread that, I’ll explain it again: Waisonovitz killed Ard, and is suing Ard for the mental anguish Ard’s death caused him. The nerve of Ard!

In case you were wondering, workers comp laws generally don’t apply to railroads.

[CORRECTION: As can be seen in the comments, there’s an important correction to this story. The media report I relied upon got the story wrong; Waisonovitz did not sue Ard. Waisonovitz only sued Metro-North; it was the railroad that brought Ard into the case.

This hardly makes Mr. Waisonovitz a poster child for personal responsibility; his lawsuit still boils down to him suing the railroad because he feels bad that he ran someone over. But he isn’t suing the direct victim.]

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Depends on what the meaning of justice is

It takes a hard person to pick on the family of a dead child — but that’s why I’m here. In 2001, Tegan Rees, a 2-year old boy living in Idaho, was beaten to death by his mother’s fiance. The boy’s father had previously reported to Idado child welfare authorities that he saw bruises when he picked up his son from his ex-wife, but when they investigated, they decided it wasn’t abuse. That was just a few weeks before the boy was murdered. So, naturally, he sued the Idaho Department of Health and Welfare for $1 million.

Last week, the jury ruled 10-2 in favor of the state agency (AP, Mar. 11). The grandmother’s reaction?

“I’m just sickened,” Christie Rees told the Post Register. “I’m embarrassed that I live in Idaho. I thought finally Tegan would get justice.”

Justice? Keep in mind that the person who actually killed the boy was convicted of first degree murder, and sentenced to 22 years to life in prison.

I guess sometimes it really is about the money.

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Microsoft’s privacy measures didn’t foil FBI

Michael Alan Crooker, currently in jail in Connecticut, says he tried to keep the data on his hard drive confidential, but FBI agents probing his alleged gun crimes nonetheless managed to duplicate its contents and turned up various embarrassing sex material. He wants $200,000 from Microsoft for disappointing his expectations that its privacy protections would prevent such a thing from happening. (Paul McDougall, “‘Embarrassed’ Gun Suspect Sues Microsoft After FBI Finds Sex Videos On His PC”, InformationWeek, Mar. 2).

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