Overlawyered: Chronicling The High Cost Of Our Legal System

“Grinch, Esq.”

Let’s face it, Dahlia Lithwick points out: “the law offers a whole host of opportunities for wrecking the lives of others”. In fact, lawyers have been known to boast about the way they’ve spoiled the other side’s holidays:

Consider the perfectly timed restraining order, or the spontaneous motion for an order to show cause — or in fact anything that could bury the other side in research and paperwork the day before Christmas. Think about the possibilities for 11th-hour changes in the visitation schedule for the children — requiring canceled plane tickets and Christmas Eve court appearances. Or the last-minute effort to have a local crèche or tree deemed unconstitutional.

So Slate, for which Ms. Lithwick writes, is holding a contest in which lawyer-readers can submit “the meanest thing you’ve ever done to an opponent on the holidays”:

The best stories will be reprinted here shortly, and the Most Evil Attorney in the World will be showered with Slate paraphernalia. This contest is also open to anyone, anywhere with stories of hideous pre-holiday lawyer shenanigans, whether they were perpetrated upon you by counsel on the other side, by bosses in your law firm, or you merely heard about them from some sad-sack lawyer in a bar on Christmas morning.

All forced jollity aside, doesn’t this present bar authorities — forever fretting about the profession’s image — with a goal worth working toward, namely, find ways to revamp the practice of litigation to make such “hideous…shenanigans” rarer? (“Billable Horrors”, Slate, Dec. 13).

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“N.Y. Judge Refuses to Reverse Wrestling Referee’s Call”

Law.com: “New York Judge Thomas J. Spargo refused to second-guess the referee of a high school championship wrestling match last week, declining to ‘establish a precedent of reviewing and potentially reversing a referee’s judgment call from the distant ivory tower of a judge’s chambers.’ Several judges from the top of the state judicial system to the trial courts have expressed sentiments ranging from disappointment to disgust when competitors turn to the courts to resolve athletic disputes.” (John Caher, New York Law Journal, Dec. 13).

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“How To Increase Liberty In America”

National Review’s 50th Anniversary Issue is on the newsstands (table of contents) and one of its features is a mini-symposium by ten writers on the topic “How To Increase Liberty In America” (more: “Corner”, Jacob Sullum at Reason “Hit and Run”, criticizing Robert Bork’s entry). I’m one of the contributors; my piece calls for reviving the vital old principle of assumption of risk in our courts. The piece is online to subscribers only at the moment.

Speaking of symposium entries that are online to subscribers only: the October issue of The American Lawyer ran a supplement on the cost of litigation, again with contributions from numerous authors. My piece focused on the cost of the discovery (information-demanding) phase of lawsuits.

At some future date I may get around to posting these pieces. In the mean time, readers should consider supporting both these fine publications, whether by subscribing or by buying single copies.

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Vatican as defendant

A couple of ambitious lawyers have managed to sue the Vatican itself in pursuit of the Catholic Church’s priest-abuse scandals, but it isn’t easy:

…even if a process server could get past the Swiss guards, handing the pope a copy of a lawsuit doesn’t count as service.

Because the Vatican is a foreign country, all documents must be translated into its official language.

In this case, that means Latin. And there’s still the major obstacle to get around of the Foreign Sovereign Immunities Act, which bars most suits against foreign governments. (Ashbel S. Green, “Suit reaches new heights: the Vatican”, The Oregonian, Dec. 11). See PoL Mar. 10. More on church scandals: this site Sept. 16, 2003, Jul. 11, 2004; Point of Law Aug. 10, Sept. 29, 2004; Aug. 28, Aug. 31, Sept. 1, 2005.

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A thought on Tookie

There have to be countless Americans who condemn gangs and haven’t brutally murdered four people, much less founded a gang that is responsible for hundreds of murders and tens of thousands of crimes by itself. Maybe some celebrities can pick one of these men or women and take up their cause.

Witnesses at Tookie Williams’s trial include the woman who sold Williams the murder weapon, his roommate, his roommate’s wife, an accomplice, three citizen-witnesses who corroborated the accomplice’s version of events, a jailhouse informant, and an expert who identified Williams’s own handwritten notes of the incident. Another accomplice, who has been sentenced to life and didn’t testify at Williams’s trial for Fifth Amendment reasons, has never wavered in his identification of Williams as a murderer.

Before his conviction, Williams attempted an escape in a conspiracy that would’ve killed two guards and one of the witnesses against him; he wrote a note indicating that he had obtained dynamite in support of this escape, which was foiled before he could commit additional mass murder. After his conviction, Tookie Williams looked at the jurors and told them he was “going to get all” of them. (One of the jurors, William James McGurkin, was black, contrary to several Williams supporter and press claims that blacks were excluded from the jury.) While in prison, Williams threatened two guards with death in two separate incidents (telling one that “I have dusted many officers on the street, one more would not make any difference,” chemically burned another guard in the eyes, engaged in several fights, and ordered an inmate stabbed by fellow Crips. The LA County’s DA’s office has extensive details.

The only reason Williams had a chance to at least pretend to redeem himself (through children’s books but not through debriefing prison officials on Crip activities, which Williams called “snitching” up to his dying day) is that his appeals (including five separate habeas petitions) took California and the Ninth Circuit twenty-four and a half years to resolve. Rich Lowry and Jack Dunphy have more.

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Federal mail fraud and RICO statutes

Prompted by the (ongoing) corruption trial of former Illinois governor George Ryan and co-defendant Larry Warner, University of Chicago lawprof Albert Alschuler has written a series of posts at the Chicago Law Faculty Blog using the trial “to illustrate the unfairness of the mail fraud and RICO statutes”. He notes that “prosecutors call the federal mail fraud statute ‘our Stradivarius, our Colt 45, our Louisville Slugger, our Cuisinart’, with the closely related Racketeer Influenced and Corrupt Organizations Act (RICO) law second on the list of favorites.

In the Ryan case, the alleged misconduct to be brought out at trial “will cover a twelve-year period and range from failing to register as a lobbyist, to accepting secret consulting fees from a presidential campaign, to giving low-number license plates to campaign contributors.” Are all those things illegal? Well, they might be, ever since Congress added a vaguely worded new section to the mail fraud statute declaring that a scheme or artifice to defraud includes a scheme ‘to deprive another of the intangible right to honest services.’” The interpretations of this language have been so broad that even an elected official’s violation of his announced personal policy on a matter, not otherwise illegal, may be construed to deprive constituents of honest services.

In the Ryan case and others, prosecutors have used the intangible rights doctrine to stand federalism on its head. In effect, federal prosecutors prosecute state officials and private individuals for state crimes in the federal courts. Worse, they use the mail fraud statute to bootstrap minor state crimes and violations of non-criminal regulations into 20-year federal felonies. … Does every broken promise by a politician (“read my lips”) now constitute mail fraud?

The mail fraud statute, Alschuler argues in a third post, encourages “kitchen-sink” proceedings in which a vast assortment of dubious actions, not in fact closely related to each other, get treated as a single vast “scheme” for purposes of prosecution. Finally, a fourth post discusses RICO charges, which prosecutors can build up on a foundation of “predicate acts” that:

may extend over two or three decades. They may include crimes on which the statute of limitations has run, crimes that could not themselves be prosecuted in a federal court, crimes that could not be joined with one another in separate prosecutions, crimes of which the defendant already has been convicted and for which he has been punished, and even crimes of which he has been acquitted in a state court. The courts, if faithful to the statute, have no way to prevent this sprawl.

For our comments on the abuse of the RICO statute by the Clinton and Bush administrations in litigation against tobacco companies, see Sept. 23, 1999 and many other posts.

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Nannyism watch: Canada mulls speed governors

“Canadian auto regulators are testing a system that would enforce speed limits by making it harder to push down the car’s gas pedal once the speed limit is passed, according to a newspaper report. The system being tested by Transport Canada, the Canadian equivalent of the U.S. Department of Transportation, uses a global positioning satellite device installed in the car to monitor the car’s speed and position. If the car begins to significantly exceed the speed limit for the road on which it’s travelling the system responds by making it harder to depress the gas pedal, according to a story posted on the Toronto Globe and Mail’s website.” (“Device stops speeders from inside car”, CNNMoney, Dec. 4). Kaimipono Wenger at Concurring Opinions (Dec. 4) says the idea “seems wrong on so many levels it’s hard to list them all” and should not necessarily be viewed as pro-safety, since speeding in some circumstances — say, on rural roads in an emergency on the way to a hospital — can be vital to life and limb.

The government of Great Britain looked at the idea a few years ago (“Go slow — like it or not”, BBC, Oct. 23, 1998; “‘Spy in the sky’ targets speeders”, BBC, Jan. 4, 2000). A 2002 research paper (PDF) funded by the U.S. Department of Transportation on New England traffic recommended speed governors as the “most effective way of achieving speed compliance” (p. 4). Last year a Gallup poll for NHTSA (PDF) found that the idea was generally not popular with the public, commanding only 35 percent support (pp. 11, 64); Eastern, female, Hispanic and black respondents were relatively favorably disposed. Back on Oct. 26, 1999 we took note of a report that trial lawyers were taking a look at trying to get courts to hold automakers liable for not installing speed governors on vehicles.

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