Overlawyered: Chronicling The High Cost Of Our Legal System

Social life of a blawger

On Friday I attended New York Law School’s conference “Writing About the Law: From Bluebook to Blogs and Beyond“. Aside from the considerable merits of the program itself (PDF), organized by NYLS’s Cameron Stracher, I met a lot of blawgers, lawprofs and others whose work I’ve been reading for years. At lunch, when Northwestern lawprof Jim Lindgren (Volokh Conspiracy) kindly suggested I join his table, I found myself seated between David Lat (Above the Law) and Ann Althouse; the rest of the table consisted of NYLS professors Jethro Lieberman (The Litigious Society) and Arthur Leonard, and publisher/editor Bernard Hibbitts of Jurist. Earlier in the day, I met Paul Caron (TaxProf), Jack Balkin (Balkinization), and Larry Solum (Legal Theory Blog), as well as catching up with old friend Randy Barnett (Volokh). For more on the program, see Larry Solum’s posts here, here and here, David Lat’s here, here and here and Ann Althouse’s here and (Times Select) here.

On Jan. 28, I attended the pre-launch party in Manhattan for BlawgWorld 2007, a volume produced by the TechnoLawyer people which pulls together a sampling of 2006 posts from 76 law-related blogs, rather like a blog festival in print. Among those I finally met in person was George Lenard of George’s Employment Blawg; I also got to say hello to a number of other blawgers I’d run into previously, including Bruce MacEwen of Adam Smith, Esq. and Arnie Herz of Legal Sanity. I can be spotted in a few of the pictures from the event, such as this one, this one and (seeming to pound my hand against the wall, though I was not in fact frustrated) this one. Clearly I should get out more often.

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Treating the morbidly obese (redux)

Dr. Anna Maria Vatura saved the life of a 400-pound man thrown from a motorcycle in a high-speed accident, but his obesity made it impossible to stabilize him with appropriate cervical spinal precautions; as a result, he ended up quadriplegic, for which he sued the doctor. In a lengthy piece for the Feb. 16 Medical Economics, she details the medical care and resulting lawsuit:

It was profoundly enlightening to realize that my career was in the hands of 12 strangers who were expected to understand and interpret in three weeks what had taken me 10 long years to learn; and even longer to practice and internalize. Maybe it was akin to a 400-pound man coming to me as a stranger, asking that I save his life and keep it as it was before he was thrown off that motorcycle going 40 miles an hour.

I testified in court for four grueling hours. I was well prepared but nevertheless terrified I would say something wrong. I felt the need to repeat what took place over and over again just to make sure the jurors understood the sequence of events. The plaintiff’s attorney—attractive, articulate, and dressed in an expensive suit—tried every trick in the book to get me to slip up, to say something she could twist into a lie. Anything she could to make me look inept, inexperienced, evil. Yes, evil. During closing arguments she played a scene of the Lord of the Rings: The Return of the King and equated the doctors in the case to the monsters. I sat there astounded that someone would actually say that I was an evil person wreaking havoc on innocent people behind the guise of a medical license.

Vatura calls for more doctors to refuse to settle cases where they’ve done nothing wrong. (via Kevin MD)

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Ordering cheesesteaks in English, cont’d

Updating our Jun. 12, 2006 entry: “The Philadelphia Commission on Human Relations notified Geno’s owner Joey Vento this week that it had found probable cause that his sign urging patrons to order in English is discriminatory. The next step is to schedule a hearing to settle the dispute or to escalate the charges against the owner of the South Philadelphia sandwich stand.” Vento, who has enlisted on his behalf the Southeastern Legal Foundation, the conservative public-interest law outfit, says he has never actually declined anyone’s order because it was not made in English, but the commission contends the sign could nonetheless make non-English-speakers feel unwelcome or discriminated against. (Andrew Maykuth, “Stakes get higher for Geno’s”, Philadelphia Inquirer, Feb. 9).

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Update: Pacenza v. IBM–Lawsuit alleges Internet sex chat addiction is entitled to ADA protection

James Pacenza’s $5 million lawsuit against his employer for firing him for seeking cybersex at work is still pending today after being filed in 2004. It first got coverage in Business Week and Overlawyered in December, was picked up in News of the Weird a few weeks ago, and then covered by the AP today (h/t W.F.). Pacenza blames his sex- and Internet-addiction on his Vietnam War service and triggers from the Gulf War; as evidence that he should be rehired, he cites to his obscene phone calls to strangers and visits of prostitutes. We have the major filings:

I’m inclined to be mildly sympathetic to Pacenza’s situation (as opposed to his lawsuit); a chat-room is hardly more disruptive to productivity than an Ebay visit, and Pacenza’s largely automated job had a lot of waiting time. But the employment-discrimination laws are not a civil-service review of whether a firing was a good management decision: IBM’s rationale for firing Pacenza was in response to employees complaining that the chat-room was sexually offensive after Pacenza had been previously warned about visiting pornographic sites; IBM was in a damned-if-you-do, damned-if-you-don’t situation because of the risk of a sexual harassment lawsuit, and failure to act against Pacenza might’ve been used against it in other litigation as evidence of a “pattern or practice” of condoning sexually offensive activity at work.

(Updated to note earlier Overlawyered post.)

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Update: Streaming-media patent troll goes respectable?

The Electronic Frontier Foundation in 2004 derided Acacia Technologies Group’s claims of ownership over streaming-media technology as “laughably broad” (see Aug. 17, 2004), but the firm has prospered since then through licensing deals with big companies. It hasn’t had to face its toughest courtroom challenges yet, though. (Xenia P. Kobylarz, “Extreme Makeover: From Patent Troll to the Belle of the Ball”, IP Law & Business, Feb. 15).

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Update: Mich. domestic partner benefits

As we noted back on Mar. 20, 2005, some Religious Right campaigners appear to have talked out of both sides of their mouths on the question of whether their proposed anti-gay-marriage amendments in states like Michigan would put an end to the availability of existing health insurance benefits for the domestic partners of employees at public entities such as cities and universities. When urging voters to approve Proposal 2, these campaigners suggested that the measure would leave existing benefits undisturbed; once it was on the books, they supported efforts to invoke it to nullify the benefits. Now a Michigan appeals court has agreed that Proposal 2 does ban public-employee DP benefits. Ed Brayton of Dispatches from the Culture Wars has details (Jul. 5, 2006; Feb. 4 and Feb. 5, 2007; see also Nov. 22, 2006) on the, um, fancy footwork engaged in by two Religious Right litigation groups, the Thomas More Law Center and the Alliance Defense Fund. For more, see John Corvino, “A tragic lie in Michigan”, Between the Lines/Independent Gay Forum, Feb. 8; Jonathan Cohn, “Spouse Abuse”, The New Republic, Feb. 15; Andrew Sullivan, Feb. 15.

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Update: C$341K trauma from seeing bottled fly

Updating our Apr. 26, 2005 entry, from Canada: “A Windsor, Ont., man lost out on a $341,775 court judgment yesterday, when the Ontario Court of Appeal ruled that a bottling company should not have been held liable for triggering a phobia of flies that altered his personality and killed his sex life.” No one in the Mustapha family consumed the fly, or any of the water that had come into contact with it, but Waddah (Martin) Mustapha said the unsettling sight had precipitated a disabling psychological aversion. The Ontario court — applying Canada’s costs-follow-the-event principle — assessed $30,000 in costs against Mustapha. (Kirk Makin, “Appeal court rules against man haunted by fly in water bottle”, Globe and Mail, Dec. 16; opinion in Mustapha and Culligan of Canada (PDF)). More: Supreme Court of Canada rules against Mustapha (May 23, 2008)

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State Farm withdraws from Mississippi

Others have mentioned or anticipated State Farm’s withdrawal from the Mississippi homeowners’ and commercial insurance markets in the wake of the Jim Hood/Dickie Scruggs campaign against them (Krauss; Olson; Wallace; Adams; Rossmiller). But how many tie in Hurricane Katrina, Dickie Scruggs, Jim Hood, Trent Lott, and William Wordsworth? I provide a historical perspective in today’s American.

Dickie Scruggs and Jim Hood have a proposed solution to the State Farm withdrawal: tell them they can’t write auto insurance, either. That will make Mississippians better off!

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