Overlawyered: Chronicling The High Cost Of Our Legal System

Immunity – up to a point

Walter stole my thunder on the dismissal of the blog comment lawsuit against Lycos, but I thought it raised an important point. One of the common refrains of the Trial Lawyer crowd is that tort reform is not needed, because there are already mechanisms for the courts to deal with frivolous litigation, and because contingency fees mean that plaintiff’s lawyers have no incentive to take on meritless cases. The theory of tort reformers, on the other hand, is that the lottery nature of litigation means that plaintiff’s attorneys can take on long shot cases, because they only need to win a handful of “deep pockets” suits to come out ahead.

Which theory best explains lawsuits like this one? It’s difficult for Section 230 of the Communications Decency Act to be much clearer. It grants (as the First Circuit noted) “broad immunity to entities, such as Lycos, that facilitate the speech of others on the Internet.” This isn’t controversial; the First Circuit described its decision as “joining the other courts that have uniformly given effect to Section 230 in similar circumstances.” (Emphasis added.) So why would the plaintiffs not only sue on such a meritless theory, but actually appeal after losing in the District Court?

(I should note that I don’t have any specific evidence that this was a contingency case; nonetheless, the larger issue — namely, how can we successfully disincentivize plaintiffs and plaintiffs’ lawyers from bringing meritless suits — remains. Immunity from liability is great — but it isn’t the same as immunity from litigation. Lycos won this suit — twice — but how much did these victories cost?)

UPDATE: I had forgotten that the plaintiffs in this case, UCS and its CEO, Michael Zwebner, and their lawyer, John Faro, are no strangers to Overlawyered; they’re the same folks who sued Wolf Blitzer because of posts on Lycos’s message board from an anonymous poster who used the screen name Wolfblitzzer0. (See also updates on March 12, 2005; October 15, 2005).

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Update: $875K award to ejected slots player

We reported Jul. 25 and Aug. 4, 2003 on the case of Stella (or Estella; accounts vary) Romanski, who was banished from the Motor City Casino in Detroit after taking and playing a nickel from an unattended slot machine. The casino said it was enforcing a policy against “slot walking”, the practice of roaming unused machines in search of overlooked coins, but a jury awarded Romanski $875,000 in punitive damages. Reader F.L. now calls our attention to the record (PDF) of U.S. Supreme Court actions taken Oct. 2, 2006, which shows that the high court denied the writ of certiorari sought by the casino.

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Experian class action settlement

Attorney Donald Caster writes from Cincinnati:

OK, I’ll admit it: I’m a “trial lawyer,” and I usually disagree with Overlawyered’s point of view. (In fact, usually when I read the blog, I’m thinking about what a great job a particular lawyer did to get the result that you’re now protesting.) But I get nearly as agitated as you folks do over the abusiveness of coupon settlements in class action cases, and I just got notice of such a settlement myself.

Below I’ve cut and pasted the exact text of the email message I received notifying me of the settlement. The class action has its own website at www.browningsettlement.com. As you can see, the defendant is Experian, and the plaintiffs claim that they made some sort of representations on a website that violated the “Credit Repair Organizations Act.”

Class counsel is set to take over $2.5 million in fees. The “benefit” to the class? A settlement in which class members get either (a) a free credit score, or (b) free credit monitoring for two months. And oh, by the way, if you take the latter option, you have to remember to cancel the monitoring, or you’ll automatically start getting billed $9.95/month for credit monitoring after sixty days. That reeks of a lack of arms-length negotiation between class counsel and the defendant (what a great deal for the defendant–they get new customers in exchange for settling a class action lawsuit!).

Read On…

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The Great Escape

Pop quiz: the police try to pull over a car, and the driver, instead of slowing down, flees at high speed. The police should (A) Let him go; (B) Keep chasing him, and pray that he doesn’t kill anybody; or (C) Try to physically stop him by bumping his car with theirs.

Okay, here’s the real pop quiz: which of those will not result in taxpayers getting the shaft and trial lawyers making out like bandits? We know from experience that the answer is not (B). The Supreme Court heard oral arguments (PDF) on Monday in a case entitled Scott v. Harris to decide whether (C) is a viable option.

Harris was a 19-year old driver in Georgia who was doing 73 in a 55 MPH zone; when police tried to pull him over, he sped up and tried to escape, reaching at least 90 miles per hour on a two-lane road. Police officer Scott joined the chase, and after Harris drove recklessly for about 10 minutes, running red lights and weaving through traffic on the wrong side of the road, Scott bumped his car to stop him. Unfortunately, Harris lost control, crashed, and was rendered a quadriplegic. A sad ending for Harris, to be sure — but in a sane world, his fault. In our world, of course, he immediately sued Scott for violating his fourth amendment right not to be “unreasonably” seized.

Over at the Volokh Conspiracy, Orin Kerr, who co-represented Scott on appeal, has been blogging about the case. (Technically, the Supreme Court is addressing the narrower question of whether Scott is entitled to qualified immunity — but as any Overlawyered reader knows, lawsuits are crapshoots; if immunity is denied and Scott is forced to go to trial, the case will probably settle so that Harris can’t win the lottery from a befuddled jury.)

If the Supreme Court rules for the driver — though oral arguments didn’t seem to be in his favor — then trial lawyers will have successfully created a no-win scenario for police; criminals will be free to flee without fear of police pursuit. Maybe it’s just me, but that would seem to be a strange incentive: criminals who surrender peacefully go to jail, and those who refuse to submit are rewarded with cash or freedom.

  • Related to this story, a reader (okay, Ted Frank) passes along another police chase lawsuit story which is (predictably) “Not about the money”: parents collect quarter-million-plus for kids’ deaths fleeing high-speed police chase [Robesonian Online]

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February 27 roundup

  • Arguments Merck won’t be allowed to make in Madison County Vioxx trial. [Point of Law]

  • First Chicago foie gras fines. [Bainbridge]

  • Sometimes med-mal plaintiffs deserve to win. [Times-Herald via Kevin MD]

  • Curious about the Leonard Peltier pardon-seeking underlying the Geffen-Clinton-Obama split? (And where does Obama stand on pardoning Peltier?) [NPPA; TPM Cafe]

  • The polite rejection letter [Parloff]

  • Judge Jack to speak at Cardozo March 27. [Point of Law]

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Billion dollar cleanup

Overlawyered has been covering the Rhode Island lead paint trial for quite some time. A year ago last February, a jury found lead paint makers liable (and see links therein); on Monday, a Rhode Island judge issued a 197 page opinion (PDF) rejecting all the motions filed by the manufacturers, and upholding the jury verdict. Associated Press; Providence Journal. There will, of course, be an appeal.

It’s a case which fits well with the theme I mentioned yesterday, with all the elements of litigation as Robin Hood-style wealth redistribution:

  • Creative lawyering, to turn a non-case into a case: this is really a products liability case, but if it had been tried under that theory, the state would have lost. So the plaintiffs called lead paint a “public nuisance,” even though any harms here are identifiably private.
  • Irresponsible victims: The proximate cause of lead-paint-related injuries is the failure of homeowners and landlords to fix peeling paint. But we wouldn’t want to hold people responsible for maintaining their own homes.
  • Going after the deep pockets rather than wrongdoers: Homeowners can’t sue themselves, and landlords don’t have nearly as much money as Sherwin Williams and the other paint manufacturers? So of course the paint manufacturers are liable. Never mind that the paint was perfectly legal when it was sold, sometimes as long as 50 years ago or more. Never mind that the plaintiffs didn’t and couldn’t prove that any of the outstanding problem was caused by any of the defendants.
  • Unlimited liability, unrelated to any money made by the manufacturers for the products in question: the judge hasn’t even figured out how much this cleanup will cost, but he’s nonetheless sure that it’s reasonable to hold that the paint companies should have done this already. Estimates range from a billion dollars to several billion, to clean up any remaining lead paint.
  • Dubious benefit to actual victims: people who have children affected by lead paint aren’t the ones who receive money as a result of this case.
  • Shades of the tobacco cases: private trial lawyers inducing the state to sue, and then then pretending to be acting on behalf of the public.

Of course, we get the obligatory disingenuous comments from the plaintiffs:

Jack McConnell, a lawyer representing the state, called the judge’s decision a “huge, huge victory for lead-poisoned children, homeowners and taxpayers.”

Except, of course, for taxpayers and homeowners who are shareholders in paint companies. Or taxpayers and homeowners who are looking to buy products whose prices will have to rise to cover the costs of lawsuits that may spring up decades down the road because of some unforeseeable risks.

And how it’s a victory “for lead-poisoned children” is a mystery, given that the only outcome of this case is that the paint companies will have to pay for the costs of cleaning up homes. The children who have actually been poisoned do not see a cent from this judgment. Jack McConnell and Motley-Rice, the lawyers “representing the state,” will rake in a few hundred million dollars in contingency fees, though.

Walter Olson also comments at Point of Law.

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Nineteenth time’s the charm

Ted’s Monday roundup links to a story below about a bar applicant who was disqualified because he faked a disability to get accommodations on the bar exam; he also cheated. The punch line is, none of it helped; he failed the exams on which he cheated and got unjustified accommodations. And not just those exams:

According to the Committee’s findings, between July 1988 and July 1998, Bedi failed the D.C. bar examination twelve times and failed the Virginia bar examination six times.

I guess he really wanted to be a lawyer.

“You know, doc. It’s just business”

A lawyer comes to the emergency room complaining that he can’t see out of his left eye. The one who examines him is the physician who blogs at Fingers and Tubes in Every Orifice:

“What do you do for a living?” I asked, already knowing the answer.

“I’m an attorney,” he proudly responded. “You’ve probably seen my ads on the highways.”

“Yes, yes. A fair settlement is no accident.” (That billboard slogan is plastered all over Crack City)

“Yeah, I’m a personal injury lawyer. I have no problems telling doctors that. I get better care that way, actually. Makes you guys more careful around me.”

“Yes, I know you very well, Mr. Cochran. You were the plaintiff attorney accusing me of being a baby killer, remember?!”

Pausing briefly to let him absorb the full irony of the situation, I continued, “As to being more careful around you, all that means is that you’ll have a bigger medical bill because of all the unnecessary tests and consultations, but I personally treat everyone the same regardless of the circumstances.”

You’ll want to see what happens in the rest of the story (Fingers and Tubes In Every Orifice, Jan. 2).

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