Overlawyered: Chronicling The High Cost Of Our Legal System

That’s so — er, stupid.

Rebekah Rice, a high school freshman, was teased about being Mormon. She responded by saying, “That’s so gay.” She was reprimanded by the school principal, and a “notation” was put in her file. She was upset, but she got over it. Ha! Just kidding. This is Overlawyered. Actually, she filed a lawsuit, claiming her constitutional rights (to call things gay?) were violated.

It’s not clear what sort of “notation” was put in her file, but the lawsuit demanded (in addition, of course, to money) that it be expunged. In the abstract, one might be sympathetic to the notion that informing college admissions offices that she was punished for using derogatory slurs might be damaging to her future prospects. (Rice denies — credibly, in my view — that the phrase was aimed at gay students.) Except, of course, that filing a lawsuit is hardly the way to keep her disciplinary history a secret.

(Previous posts about teenagers suing over school discipline: Feb. 22; Jan. 5)

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Search engines are not common carriers

The First Amendment and Section 230 of the Communications Decency Act protect search engines’ decisions about what content to carry; Google can’t be forced to run ads or “honestly” rank websites, according to a federal judge in Delaware. Eric Goldman has the details.

Goldman notes that this particular case, filed by a pro se litigant, was clearly frivolous, but the decision is still useful for Google, which, as the dominant player in the search engine game, faces suits elsewhere based on similar theories.

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John Stossel on vaccine scares

It was one of the topics of his prime-time special last Friday:

[Attorney Allen] McDowell is now debating whether to file new lawsuits claiming that vaccines cause autism. I said to him, “You scare people and make money off it!” After a pause, he replied, “True.”

(“The Fear Industrial Complex”, syndicated/RealClearPolitics, Feb. 28; Autism Diva, Feb. 23 and Feb. 24). More: Mar. 8, 2006 and many others.

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Pay-for-play, the Gotham way?

New York City Comptroller William Thompson, Jr. regularly hires outside law firms to represent city pension funds in shareholder lawsuits, as with a recent suit against Apple Computer. The New York Sun “[obtained] the names of the nine law firms in the ‘securities litigation pool’ that the city uses to file these shareholder suits” and found that lawyers associated with the firms had donated more than $100,000 to Mr. Thompson’s campaign coffers. (“Thompson’s Trial Lawyers” (editorial), New York Sun, Feb. 27). See Aug. 14-15, 1999 (ABA delegates defeat proposal to ban pay-for-play); Sept. 25-26, 2001. The Committee on Capital Markets Regulation aimed some criticism at the practice: see Point of Law, Dec. 1.

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Prince Charles v. McDonald’s

You don’t want to know how many calories are in one of HRH’s Cornish pasties. The authentic Cornish style of pasty always did seem heavy to me, as one raised on the Upper Peninsula Finnish kind. (Rebecca English and Sean Poulter, “The Royal pasty that’s unhealthier than a Big Mac”, Daily Mail (UK), Feb. 28; “Prince Charles says ban McDonald’s food”, AP/Seattle Post-Intelligencer, Feb. 28).

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More police liability lawsuits

  • Reader James Huff passes along this (Bloomington) Pantagraph story from last October of a lawsuit in Illinois over a police shooting of a driver after a car chase. The driver was drunk and had multiple drug convictions for which he was on probation at the time of the incident. The officer said he shot the driver when the driver tried to run him down. Of course, it’s Not About The Money:

    Dorris said Ruch’s parents, Jack and Margery Ruch, are more interested in details of the incident becoming public than collecting a financial settlement.

    “The thing the Ruch family wants the most is to search for the truth,” Dorris said. “If we have to try this case to get that, then it’ll be tried.”

    That didn’t stop them from requesting that the details of the settlement remain private, though. They later changed their mind after the local paper sued; they settled for $750,000.

  • Via Howard Bashman: on Monday, the Sixth Circuit reversed a lower court opinion finding the police liable when a drunk driver killed another driver. The court agreed that (treating the victim’s allegations as true) the police were incompetent, but incompetence does not create a violation of constitutional rights. (Whatever happened to “Don’t make a federal case out of it?”) The opinion is here (PDF).

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Trial lawyer’s macaca moment?

Michael Kinsley famously defined a “gaffe” as when a politician accidentally tells the truth. If so, plaintiff’s lawyer Anthony Buzbee committed an awfully big gaffe last year (caught on tape!), as Peter Lattman explains in the Wall Street Journal’s Law Blog (See also W$J). It’s an open secret that trial lawyers venue shop for the best possible jurisdiction to file a lawsuit, but they rarely describe it openly, particularly in stark racial terms:

“That venue probably adds about seventy-five percent to the value of the case,” he said. “You’ve got an injured Hispanic client, you’ve got a completely Hispanic jury, and you’ve got an Hispanic judge. All right. That’s how it is.”

In other parts of Texas, Buzbee went on, a plaintiff may have the burden of showing “here’s what the company did wrong, all right? But when you’re in Starr County, traditionally, you need to just show that the guy was working, and he was hurt. And that’s the hurdle: Just prove that he wasn’t hurt at Wal-Mart, buying something on his off time, and traditionally, you win those cases.”

I guess tort reformers won’t get any debate from Buzbee when they describe places like Starr County as judicial hellholes (PDF).

Buzbee’s a trial lawyer, not a politician, so his reaction is entirely predictable: as per the Galveston County Daily News (and press release from Buzbee’s lawyers), Buzbee is suing the people who ran the seminar and those who allegedly taped him, claiming that he agreed to give his talk on the condition that it not be recorded, and further claiming that circulating the tape was done to “damage his career.” It seems to me that “The truth will damage my career” is perhaps not the smartest p.r. strategy, but I guess we’ll see how his suit goes.

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They asked for it, they got it

Despite its calamitous and demagogic handling of Katrina flood insurance claims, it’s worth recalling that Mississippi has taken great strides toward cleaning up its formerly sorry reputation in other legal areas, personal injury litigation in particular. One business that seems to have noticed, per Pat Cleary at NAM (Feb. 28) is Toyota, the same company that passed over the Magnolia State in a plant-siting decision three years ago (see Apr. 30, 2004). The new Highlander assembly plant, be it noted, is to be located near Tupelo in the northeastern part of the state, far away from the storm-surge-peril zone. (“Toyota To Build Highlanders in Mississippi”, Car and Driver Daily Auto Insider, Feb. 28).

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You can’t be too careful

No, literally: you can’t be too careful, or you may get in trouble.

In 2003, the Staten Island Ferry crashed into a pier at full speed, killing 11 people and injuring hundreds, because the pilot passed out; the pilot ultimately pled guilty to manslaughter. Victims and their families promptly sued New York City, which owns and operates the ferry. On paper, NYC had very tough safety rules, requiring two pilots to be in the pilothouse at all times, just in case; however, it turns out that this rule was not always followed.

On Monday, this abundance of caution came back to bite the city; a federal judge hearing the case held that the existence of these rules could actually be a factor in its liability (NYT):

The city had also argued that because its two-pilot rule was stricter than required by general negligence principles, the violation of the rule did not constitute negligence. In any case, the city said, individual crew members, not the city, were at fault.

But the judge, Edward R. Korman of United States District Court in Brooklyn, rejected those arguments. He wrote that by adopting the two-pilot rule, the city acknowledged a serious risk of accident if the pilot were incapacitated, and that knowledge of that risk required the city to remedy it.

In other words, the fact that at one point in time someone who worked for the city was extra-cautious actually works against the city; as soon as someone put down an idea about safety on paper, it became a minimum requirement rather than an option. (Trial lawyers already routinely use the existence of internal safety deliberations at a corporation as proof that a corporation knew about and ignored particular risks.) So what lesson do we send? Don’t adopt any rules beyond the absolute bare minimum; certainly, don’t put anything beyond this on paper.

(The judge naively pooh-poohed this risk, arguing that a “rational company” would be “far more concerned with actually preventing accidents than with gaming future negligence actions by carefully crafting its safety manual,” as if a company knew beforehand which accidents were “actually” going to happen.)

N.B.: I should clarify that the city may actually have been negligent in this particular instance; I’m critiquing the principle the judge espouses, rather than its application here.