Overlawyered: Chronicling The High Cost Of Our Legal System

Hussein executed

Saddam Hussein has been executed, according to numerous media reports. A few hours ago, U.S. District Judge Colleen Kollar-Kotelly of Washington denied a last-minute application for a stay of execution filed by Hussein’s lawyers.

The application was filed at 1 p.m. this afternoon by the law firm of Gilman & Associates, who argued that a stay was justified because Hussein was a named defendant in a civil lawsuit before the D.C. district court, “but his incarceration has prevented him from receiving proper due process notice of his rights to defend himself and his estate.” Military officials said Hussein could not meet with his lawyers to discuss the civil suit until January 4, which obviously is a moot point now.

Read On…

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U.S. v. Stolt-Nielsen: Unenforceable Contracts

Next week the Justice Department will file its response to a motion to dismiss made by Stolt-Nielsen Transportation Group and its two co-defendants in a criminal antitrust case now pending in Philadelphia. Four years ago, Stolt-Nielsen received amnesty from the DOJ in exchange for cooperating with the Antitrust Division’s price-fixing investigation of the parcel tanker industry. The amnesty was revoked less than three months later, however, after the Division accused Stolt-Nielsen of misrepresenting the timeline of the alleged conspiracy.

The Division had never revoked an amnesty granted under its 1993 Corporate Leniency Policy, and the unprecedented action against Stolt-Nielsen prompted the company to file a lawsuit to enjoin prosecutors from indicting the company. In January 2005, a judge granted the injunction, holding that Stolt-Nielsen did not breach the amnesty agreement. Specifically, the court said the terms of the amnesty agreement—which was drafted by the DOJ—made no reference to any specific timeline.

Read On…

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Chicago foie gras update: “I’ll have the special lobster”

Did you think the city famed for Al Capone and the Prohibition speakeasies would roll over for an even sillier nanny-statism?

When the letter came from City Hall threatening punishment if he continued to serve foie gras at his North Side restaurant, Doug Sohn framed the warning and set it beside his cash register.

And he kept serving the fattened duck liver without a care. …

The city has sent warning letters to nine restaurants believed to have served foie gras but issued no citations, Chicago Department of Public Health spokesman Tim Hadac said. Letters are sent after a citizen complaint and are followed by a visit after a second complaint. Visits that turn up evidence of the banished dish can result in fines from $250 to $500.

But Mayor Richard Daley is no fan of the ban–just this week, he called it “the silliest law” the City Council has ever passed.

Perhaps that helps explain why the Health Department is in no rush to boost their compliance checks.

“In a world of very limited public health resources we’re being asked to drop some things so we can enforce a law like this,” Hadac said. “With HIV/AIDS, cancer, West Nile virus and some of the other things we deal with, foie gras is our lowest priority.” …

Some owners have tiptoed around the ban by serving the dish under alternate or code names (“I’ll have the special lobster” will supposedly score foie gras at one restaurant), but renegades say they’ll do what they must to fight City Hall. …

At first, [restauranteur David Richards] said, restaurant owners worried their access to foie gras would be limited, and they crafted plots to keep their supply flowing–like getting it mailed to a suburban address for weekly covert pickups. Such cunning turned out not to be necessary, he said. Richards still gets foie gras from the same distributor he always did, and no one seems to care that it is still on his menu.

“We look at it as a choice,” he said. “We live in a free-market society and if people are truly offended they won’t buy it. If they don’t buy it, I won’t buy it.”

Instead, he said, his foie gras sales have climbed, making him even less inclined to heed the law. …

Many of those most vocally opposed to the ban have coolly stepped away from the debate by ending their foie gras sales or at least coming up with names clever enough to obscure the issue. Available on the menu at Copperblue, for instance, is “`It Isn’t Foie Gras any Moore’ Duck Liver Terrine”–a testy nod to the alderman who sponsored the foie gras ban.

Though the $16 cost seems closer to the price of foie gras than simple duck liver, Copperblue chef and owner Michael Tsonton would not say whether he had merely renamed the illicit dish. In September, when still serving foie gras, he got a warning letter that he said he hung in his kitchen.

(Josh Noel, “Let ’em eat foie gras, they declare”, Chicago Tribune, Dec. 22 (via Noonan, who says he was thinking of opening a restaurant called “Foie Gras Fried In Trans Fat”)). The Tribune story lists the nine restaurants that have gotten warning letters, and I can personally vouch for one of my favorites, Bin 36, where a date and I had a fine meal during a January 2005 blizzard.

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Sarokin defends Kreimer decision

Former federal Judge H. Lee Sarokin, now a blogger, defends his decision in the Kreimer case (Mar. 17, 2005; Feb. 25):

I concede that I have made some mistakes (what judge hasn’t), had some reversals and wish I could revise some decisions, BUT no matter how many times they say that I ruled that a “smelly, homeless” man could annoy and drive patrons out of the Morristown library and harass women, it won’t be true. I declared a regulation invalid on the grounds that it was too vague and broad in giving librarians the discretion to oust or forever bar patrons. I never made any ruling about the individual involved or his conduct. It was a decision on the law not on the facts.

This is a dodge: Sarokin ruled that the library could not have a blanket rule excluding members of the public for poor personal hygiene, because such a rule would be too vague. So Sarokin did rule that it was impermissible for a library to bar someone for being so smelly as to be a nuisance. Also unmentioned is that Sarokin was wrong on the law, to boot: the Third Circuit eventually overturned Sarokin’s decision:

While the district court was probably correct that the rule may disproportionately affect the homeless who have limited access to bathing facilities, this fact is irrelevant to a facial challenge and further would not justify permitting a would-be patron, with hygiene so offensive that it constitutes a nuisance, to force other patrons to leave the Library, or to inhibit Library employees from performing their duties.

Alas, this decision on the injunction came too late: taxpayers had already shelled out $230,000 to Kreimer in a settlement of the pending damages claims, having already been held liable by Sarokin. See Kreimer v. Bureau of Police for the Town of Morristown, 765 F. Supp. 181 (D.N.J. 1991), rev’d 958 F.2d 1242 (3d Cir. 1992).

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Deep Pockets File: 19-year-old dies moshing, family sues homeowner

A handful of teenagers were moshing at a New Year’s Eve party; 19-year-old Calvin Harris was apparently struck in the chest and died of concussion of the heart in a freak accident. Harris’s family is suing William Conklin (who allegedly hit Harris), and Conklin’s mother, who owned the house where the party was held, though she wasn’t home at the time. It’s not clear from press coverage if William Conklin was an adult at the time of the party. (Anthony Lonetree, “Lawsuit filed over New Year’s party death”, Minneapolis Star-Tribune, Dec. 29 (via Romenesko); inconclusive Harris family video of collapse).

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Best of 2006: June

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State Bar Files Charges Against Prosecutor in Duke Rape Case

According to this Associated Press report in the New York Times, the North Carolina state bar has filed ethics charges against Mike Nifong, saying that he has violated several ethics rules — in particular the rule against making misleading and inflammatory statements to the media about those accused of a crime.

The bar committee said that it had opened the investigation just two weeks after the rape charges were first made, though it only filed the ethics charges against Nifong on Thursday. In addition to the public-statement charges, Nifong was also charged with dishonesty for certain statements that he knew were misleading based on reports already in his possession.

No hearing date has been set.

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Best of 2006: May

Class actions galore:

That’s not to say that there weren’t other types of lawsuits:

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Best of 2006: April

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More on the Exxon Valdez punitive damages story

Following up on my post the other day about the lawyers’ share of the possible $4.5 billion Exxon payout — the WSJ Law Blog discussed this yesterday, and provided some additional and interesting numbers. The lawyers’ share of the award has been set at 22.4% of the final judgment, including interest. That’s smaller than the percentage in many contingent-fee agreements, but results in a lot of dollars here.

According to the WSJ, there are 62 law firms representing plaintiffs. Each firm’s share depends in part on how many clients it represents, and there is a three-percent “bonus” for the most-active firms. So each lawyer’s share of the $1 billion+ is a little hard to calculate, but partners at both Faegre & Benson and Davis Wright Tremaine estimated that their firms would each clear over $100 million. Faegre, for example, has 262 partners, so that would be $381,679 each — just $22,451 for each of the 17 years that the case has been pending, but on the other hand there were almost certainly long stretches where little if any work was being done.

Oops — almost forgot the actual plaintiffs. There are 32,677 of them, who will be splitting the other three or four billion (depends on the final interest award). Assuming it’s $3.5 billion, and assuming everybody has an equal share (which isn’t true), each plaintiff would recover $107,108, or $6,300 for each of the 17 years he or she has been waiting. Is it fair that each lawyer on the case will end up with three or four times the cash that an injured party is getting? Let the comments begin.

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