Overlawyered: Chronicling The High Cost Of Our Legal System

Ralph Nader and the Philadelphia Eagles

Ralph Nader is arguing that the Philadelphia Eagles’ decision to suspend star wide receiver Terrell Owens (for, inter alia, publicly criticizing the team and quarterback, shouting at coaches, a physical altercation with a teammate, and then failing to apologize) is consumer fraud because season-ticket holders had an expectation that Owens would play for the team, which barely lost the Super Bowl last year, and was an early favorite this year. (But what about all those New York Times subscribers who expected to read Judy Miller?) The suggestion rises to self-parody, though it exhibits the absurdity of modern consumer fraud law in that it isn’t crazier than suits that actually succeed. But I’m somewhat sanguine about Nader’s latest foray; if he’s tilting at the windmill of trying to make football coaching decisions litigable (Can a fan sue the Washington special teams coach for costing the team the game against Tampa Bay because it reduced the chance the team would go to the Super Bowl and the resale value of his season tickets?), it means he’s not spending time trying to wreck more important industries.

(Yes, I know that one shouldn’t blame the Washington special teams coach for losing the game. But it would be actionable under the Nader regime if a lawyer can find a fan who purchased tickets after hearing coaches say they were trying to avoid senseless penalties this season.)

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The hidden costs of Sarbanes-Oxley

Instead of making investments that would create 75 jobs, Max & Erma’s Restaurants is spending half of its profits on Sarbanes-Oxley compliance. The company will go private to avoid the regulatory hassle, but that limits the company’s access to the capital markets—and everyday investors’ access to opportunity. (John Berlau and Anastasia Uglova, “Sarbanes-Oxley ‘reform’ harming economy”, Pittsburgh Post-Gazette, Nov. 13). And Larry Ribstein sees SOx behind Georgia-Pacific’s decision to go private.

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“People Over Profits”: ATLA Astroturf lobbying over vaccines

The trial lawyers’ lobby has a new technique for pressing its opposition to proposals that would reduce or eliminate liability for drug companies to manufacture vaccines.

Run a Google or Yahoo search for “bird flu” or “avian flu” and a sponsored link will pop up, leading to ads by a group called People Over Profits — which is actually a unit of the Association of Trial Lawyers of America. They bear such headlines as “Bird Flu and Viagra: What do they have in common?” and “President Bush and Bird Flu: What Bush is not telling you.” (The group also purchased the search term “Rafael Palmeiro,” not because he has anything to do with the issue but because the ballplayer gets Googled a lot in the steroids controversy.)

Now even Web searchers aren’t safe from lobbying! And since sponsors can monitor the traffic, says ATLA spokeswoman Chris Mather, “you can change your message during the day if it’s not working.”

(Howard Kurtz, “CIA Article Sidebar: A Story of Deja Vu”, Washington Post, Nov. 14). Of course, it’s more important for trial lawyers to have lawsuit opportunities than for manufacturers to be able to make vaccines. More: Apr. 11, Oct. 19, 2004, Dec. 24, 2003.

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“Man glued to toilet seat sticks to story”

“A man who sued Home Depot claiming that a prank left him glued to a restroom toilet seat has passed a lie detector test, a newspaper reported.” After Bob Dougherty made headlines with his allegations that employees of the home improvement chain failed to respond to his calls for help, “Ron Trzepacz, former director of operations in Nederland, where Dougherty lives, said that Dougherty claimed in 2004 that he was glued to a toilet seat in the town’s visitor center but pulled himself free.” However, Dougherty said he knew nothing of Trzepacz or of such an incident and offered to take the polygraph test, which was arranged by a local television station. (AP/CNN, Nov. 11). Amid the numerous puzzling aspects of the case, one aspect is reassuringly familiar, namely that it’s Not About the Money (see Nov. 7, etc.) “It’s not about the money. I want my health back. I want to be back to normal,’ Dougherty said. ‘I want to make sure this doesn’t happen to anybody ever, ever again.'” His lawsuit asks $3 million for pain, humiliation and other losses. (AP/CNN, “Man glued to toilet may have history”, Nov. 8). Possibly the most groanworthy headline, of several candidates, was the Dallas Morning News’s: “Toilet allegation: Was it stunt No. 2?” (Nov. 8).

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Jahkema “Princess” Hansen

Fourteen-year-old Jahkema “Princess” Hansen was dating 28-year-old murder suspect Marquette Ward. Police detectives visited Hansen to see if she had any information about the murder over a PCP-laced marijuana cigarette, which she allegedly witnessed. She told them she didn’t, and then (according to prosecutors) went to Ward and asked for compensation for keeping quiet. The night after the interview, a friend of Ward’s, Franklin Thompson, allegedly stormed Hansen’s DC townhouse and shot her dead, execution-style. (Ward and Thompson have plead not guilty to the two murders, and go to trial in March.)

But what makes this sordid story one for Overlawyered was the reaction of Hansen’s mother, Judyann Hansen, who, through her attorney, Donald Rosendorf, sued the Washington, DC, police department, blaming them for Hansen’s death. “Any time a police officer sets foot in that neighborhood, it gets around and it gets around fast,” Rosendorf said. Thus, he argued, the mere fact of the interview created a legal duty to provide special protection for Hansen. A D.C. Superior Court judge has disagreed, and dismissed the suit. (Henri E. Cauvin, “D.C. Police Not Liable in Witness’s Death, Judge Rules”, Washington Post, Nov. 10). A Marc Fisher column in the WaPo in February painted a more sympathetic portrait of the Hansen family (which included two adult sons serving time for crack-dealing), which led to a Charlotte Allen fisking.

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By the numbers

“At last count, Congress Assembled contains two physicists, two chemists, two biologists, one geologist, 234 lawyers and an astronaut. This puts the lawyers within striking distance of an absolute majority in the 538-member Congress.” (Russell Seitz, “Congressional Math”, Wall Street Journal, Nov. 11)(sub-only).

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“For Online Parents’ Group, a Legal Scare”

When “a recent question about a preschool prompted a mother and shop owner to recount a bad business encounter with the school’s director, the husband of the school’s director threatened to sue the board’s moderators for defamation.” As “Mr. [Edward B.] Safran’s threats of a lawsuit continued, the moderators were scared into shutting down the message group’s entire archives this month.” (Mokoto Rich, New York Times, Nov. 13).

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