Overlawyered: Chronicling The High Cost Of Our Legal System

“A Generation of Lawyers who haven’t tried cases”

The Portland Press Herald reports on a legal debate allegedly going on in the state of Maine right now. (I say “allegedly” because the article relies on the tried and true journalistic tactic of describing what “some” say and what “others” and “critics” argue, while identifying only one or two people who take these positions.) The debate is over whether too many cases are settling out-of-court rather than going to trial; according to statistics cited, only about 2% of civil cases in Maine have made it to trial in the last two years.

Some see settlements reached by compromise as a better outcome than a trial, which is expensive and risky for both sides.

But others argue that the trend has moved justice underground. With fewer trials there are fewer public verdicts that set the legal boundaries for the rest of society. And without verdicts, there are no appeals, in which the state supreme courts make precedent-setting rulings that future decision makers can rely on.

As I mentioned, it’s unclear precisely who is taking these positions in Maine, but from the hints in the article, it appears to be trial lawyers complaining, and everyone else on the other side. The biggest complaint seems to be that cases don’t set monetary precedents that can be used to ratchet up the risks for future defendants, thus inducing them to settle for big money.

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Ken Sah, spelling bee father

A number of newspapers have picked up the tale of Kunal Sah, who will be competing in his second consecutive national spelling bee this year. His parents were recently deported after sixteen years of living in the States, and some bloggers have noted the irony: here’s a successful immigrant who owned a business and raised a successful son, and they’re being deported because of “tough U.S. immigration regulations in the post-9/11 atmosphere.”

Except the deported parents are not anywhere near as sympathetic as the press coverage makes them out to be. Kanhai Lal “Ken” Sah came to the United States in 1990, and, as his visa expired in 1991, applied for political asylum, and managed to keep his case alive for fifteen years. His son Kunal was born during that time, and got American citizenship as a result, and remains in the country. But the parents’ asylum application was denied, and they were deported

Sah’s asylum claim? He feared Muslim persecution in his home country. That might engender sympathy—until one realizes that his home country is India, which has 800 million fellow Hindus for Sah to live amongst. And that Sah’s basis for fearing persecution was because, as a member of the radical Hindu nationalist organization Vishwa Hindu Parishad, he “took a very active part in organizing and conducting [anti-mosque] meeting[s]” and that he “actively participated in the riots to [attempt to] demolish the Babri Mosque.” (Vishwa eventually succeeded in destroying the mosque in 1992, causing religious riots that killed 900 people.)

The Sahs are now engaging in a public relations campaign for citizenship on the basis of the hardship created by the fifteen years they spent in the country churning the bogus asylum application. None of the press coverage mentions Ken Sah’s role in his asylum denial as a radical Hindu. Don’t believe the hype. (Sah v. Gonzales (10th Cir. 2005)). (And welcome Malkin readers.)

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A Bronx tale?

Definition of mixed emotions: a New York Yankee being sued. (I’m not a fan of either.) Last week it was Cory Lidle’s family being sued (and suing) over his fatal airplane crash; this one is slightly less serious. Last August, while Carl Pavano was pitching in the minor leagues, he got involved in a car accident in Florida. His car allegedly skidded on wet road, and slid into a vehicle stopped at a stop sign. So, obviously, this is the fault of… the New York Yankees. We know, because Ernest DeLaura, the driver of the other vehicle, filed a lawsuit in January naming both Pavano and the Yankees as defendants.

(Somehow, despite the fact that DeLaura was in a tractor trailer and Pavano was in a car, DeLaura claims he sustained “severe and permanent personal injuries,” while Pavano is healthy enough to play in the major leagues.)

Oddly, DeLaura filed the lawsuit in the Bronx, even though he’s a resident of Florida and the accident occurred in Florida; it’s not clear whether this has to do with the Bronx’s pro-plaintiff reputation or the inability of DeLaura to gain jurisdiction over the Yankees in Florida.

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Lawsuits against restaurant critics

New York Times legal correspondent Adam Liptak has a good article summing up the state of play on legal actions arising from unkind reviews of eateries, including several cases familiar to our readers (Feb. 27, Philadelphia; Feb. 10, Belfast; Jan. 3, 2006, Dallas)(“Serving You Tonight Will Be Our Lawyer”, Mar. 7). More: PhilaFoodie.

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Drinking and eating can kill a friendship

So here’s a quiz to see whether you have what it takes to be a trial lawyer: Man walks into a bar, has some drinks, rides over to a diner with his friend. At the diner, the man orders a sandwich, chokes on it, and dies. So the question is, who do you sue?

(A) You don’t. It’s nobody’s fault; it was just a tragic accident. If anybody is to blame, it’s the man who got drunk and then carelessly choked.
(B) The diner, for serving the sandwich.
(C) The friend, for driving the man to the diner.
(D) The bar, for serving him alcohol; if he hadn’t been drunk, he might not have choked.

If you answered (A), you’re new here, aren’t you? If you answered (B), (C), or (D), well, you’re getting warmer, but you’re not quite there. As every real trial lawyer knows, the answer is (E) The diner, the friend, and the bar.

In 1991, a man from upstate New York named Thomas Filiberto had some drinks at a bar Tavern, and then was driven over to a diner by his friend, who also happened to be the bartender. Filiberto ordered a hot roast beef sandwich, choked, and died, despite the attempt of other diner patrons to save him. His family sued everybody “involved” — and I use the term loosely. The bar, the bartender/friend, and the diner.

Read On…

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It’s not about the money

No, really. This time, it might not be.

In January 2006, retired New York Times reporter David Rosenbaum was mugged in Washington, D.C.; the muggers hit him over the head with a pipe. When his body was discovered and emergency workers responded, they somehow missed the fact that he had been bashed over the head (Oops!), and decided he was merely drunk. Because of that mistake, every aspect of the response was botched; police failed to investigate the crime right away, and emergency workers and the hospital where they eventually took him failed to immediately treat him for his serious head injury. Two days later, he died.

Last November, his family sued the city and the hospital for $20 million. On Thursday, they settled their lawsuit with the city, for no money (Washington Post):

The family of a slain New York Times journalist yesterday agreed to forgo the potential of millions of dollars in damages in exchange for something that might be harder for the D.C. government to deliver: an overhaul of the emergency medical response system that bungled his care at nearly every step.

David E. Rosenbaum’s family said it will give up a $20 million lawsuit against the city — but only if changes are made within one year.

Under a novel legal settlement, the city agreed to set up a task force to improve the troubled emergency response system and look at issues such as training, communication and supervision. A member of the family will be on the panel.

Although legal experts said the family could have won millions had it pursued the case, Rosenbaum’s brother Marcus said he and other relatives were more interested in making sure that the city enacted measurable changes.

The family hasn’t abandoned the path of litigation entirely; their suit against Howard University Hospital continues. And the family can reinstate the lawsuit against the city if it fails to implement the reforms it has promised within a year.

Interestingly, a search of news coverage about this lawsuit did not reveal even one instance of any of the plaintiffs or their lawyers uttering the immortal mantra, “It’s not about the money.”

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I can’t believe it’s not (legal) butter

“In a twist of science, the law and what some call trans-fat hysteria, [New York City] wholesale bakers are being forced to substitute processed fats like palm oil and margarine for good old-fashioned butter because of the small amounts of natural trans fat butter contains.” (Kim Severson, “Trans Fat Fight Claims Butter as a Victim”, New York Times, Mar. 7). More: Feb. 15, 2005; Jun. 14, Jul. 30, Sept. 27, Oct. 16, Dec. 5, Dec. 10, 2006; Mar. 3, 2007.

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U.K. roundup

Because you were clamoring for one:

  • Police warn householders of three convicted burglars but say they cannot describe them for fear of violating their human rights [Telegraph]

  • Eight year old Connor McCreaddie is very fat indeed, so North Tyneside officials are considering taking him from his mum into protective custody [Gillespie, Reason “Hit and Run”]

  • Sounds promising but haven’t seen: author Simon Carr has published compendium of legal horror stories entitled “Sour Gripes” [Telegraph]

  • As in the U.S., prospect of discrimination suits has deterred efforts to keep unhealthily thin fashion models off the catwalk [Guardian]

  • Ban on fox hunting not only is widely evaded but in fact has led to renaissance of the sport [Telegraph]

  • “An incompetent expert [witness] can cause more misery than a psychotic gang member.” [Slapper/Times]

  • Vacationing cop busted for Swiss Army knife [Daily Mail]

  • In hospitals, perhaps a surfeit of privacy [Huddersfield Daily Examiner via KevinMD] and sensitivity [Daily Mail via ditto]

  • Man obsessed by sex after motorcycling injury expected to get multi-million-pound award [Telegraph]

  • Children’s sack race scrapped for lack of liability insurance [Telegraph]; industrialist says inordinate playground risk-aversion is bad omen for economy [ditto]

  • Convicted armed robber “given legal aid to sue over a telephone message that reveals that his phone calls come from prison” [Telegraph]

  • Familiar ring? Controversy mounting over “ambulance chasing”, allegations of sharp practices as no-fee-no-win injury work makes fortunes for some well placed solicitors [Times here, here, here, here]

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