Some “framing” advice

Speechwriter/ghostwriter Jane Genova (Apr. 10), commenting on one of linguistics guru George Lakoff’s suggestions for semantic reformulation of public debate: “Dems, be prepared to be laughed at when you start calling trial lawyers ‘public-protection attorneys.’ Then you’ll not only be yesterday but ridiculous.” Other bloggers, rounded up on Technorati, don’t seem to care for the idea much either.

No running — this is a playground

Courtesy Matt Conigliaro (Jul. 18): swings and other fun elements are disappearing fast from South Florida playgrounds under lawyering pressure. “To say ‘no running’ on the playground seems crazy,” says Broward County School Board member Robin Bartleman, whose own 6-year-old daughter is disappointed in the playground at Everglades Elementary in Weston. “But your feelings change when you’re in a closed-door meeting with lawyers.” “Play is one of children’s chief vehicles for development,” said University of Texas emeritus professor Joe Frost, who runs the Play and Playgrounds Research Project there. “Right now it looks like we’re developing a nation of wimps.” (Chris Kahn, “In the pursuit of safety, teeter-totters and swings are disappearing from playgrounds”, South Florida Sun-Sentinel, Jul. 18). See Sept. 8, Mar. 5, etc. More: Liz Lightfoot, “Schools ‘wrap children in cotton wool'”, Daily Telegraph (U.K.), May 3.

Update: $65.1 million verdict in Florida

The Daily Business Review has more on the Eller Media trial and verdict in Florida (Jul. 10). While the story unfortunately does not take any steps to resolve the question of whether the defense theory of a lightning strike had any legitimacy, the story does reveal that the beneficiary of the $65.1 million verdict will be a father who abandoned his son when he was two, and then had little to do with him over the next ten years before there was a potential deep-pocket defendant. The plaintiffs were allowed to argue to the jury that the profits of Clear Channel Communications—which bought the defendant years after the incident—should be considered. (Jessica Walker, “Strategies on the Way to a $65 Million Verdict”, Jul. 12).

“Parents asked to pay alimony to son’s wife”

As New Jersey Law Blog summarizes the case (May 19): “Cynthia Idleman claims that after her husband [Douglas] lost his job and suffered a disabling medical condition his parents have supported their family for the last two years by giving them about $20,000 per month. She claims that by having done so, ‘they have stepped into the shoes of their son’ and, thereby, assumed a continuing obligation to support not only their grandchildren, but also her.” See “Divorce Case Focused On In-Law Support”, WINS, May 17; Lisa Brennan, “Lawyers Wince at Grandparental Alimony Claim”, New Jersey Law Journal, May 26. Among those commenting: Enlighten-NJ, Michael Capanzzi, and the Michigan Medical Malpractice blogger.

Streamlined Procedures Act of 2005

With excited editorials in the New York Times and Washington Post announcing that a bill before the Senate Judiciary Committee will “gut the legal means by which prisoners prove their innocence,” it’s worth asking the following trivia question:

Q. Under the Streamlined Procedures Act of 2005, what is the minimum number of levels of judicial review a criminal defendant sentenced to death will have?

Read On…

Update: Stifling archaeology, the tribal way

Sen. John McCain (R-Ariz.) is now sponsoring that very troublesome bill, formerly championed by the departed Sen. Ben Nighthorse Campbell of Colorado, to amend the Native American Graves Protection and Repatriation Act so as to expand Indian tribes’ power to assert control over prehistoric human remains not associated with any still-existing tribe (see Oct. 18, 2004). The bill would go far to reverse scientists’ victory in the nine-year court battle over tribes’ asserted right on cultural grounds to reclaim the remains of 9.300-year-old Kennewick Man (Aug. 9, 2004, etc.) Cleone Hawkinson, president of Friends of America’s Past, “says the change would make it impossible to study the earliest inhabitants of North America. ‘American archaeology would come to a standstill,’ she said.” A hearing before the Senate Indian Affairs Committee is scheduled for Jul. 28. (Sandi Doughton, “Fate of Kennewick Man study unclear”, Seattle Times, Jul. 15).

More: reader Carey Gage writes in to advise, “check out Moira Breen’s site on this issue. She has been all over it for years.”

Grand Theft Auto “Hot Coffee Mod”

Bill Clinton made a name for himself as a moderate by criticizing violent rap in 1992, and Hillary is following in his footsteps with what ALOTT5MA’s “Phil Throckmorton” calls “an executive-quality display of deep moral concern” over an alleged modification possible in the popular “Grand Theft Auto: San Andreas” video game that makes the simulated sex in the game somewhat more explicit, and thus worthy of an “AO” Adults Only rating instead of a “M” Mature rating. (Under the voluntary system, AO is 18+, while M is 17+.)

Me, I’m just amused by the thought of class action attorneys trolling for a named plaintiff parent who will testify that, while she was okay for her little Johnny to buy a game involving drug dealing, gambling, carjacking, cop-shooting, prostitution, throat-slashing, baseball-bat beatings, drive-by shootings, street-racing, gang wars, profanity-laced rap music, homosexual lovers’ quarrels, blood and gore, and “Strong Sexual Content,” she is shocked, shocked to learn that the game also includes an animation at about the level of a Ken doll rubbing up against an unclothed Barbie doll with X-rated sound effects, and is thus a victim of both consumer fraud and intense emotional distress, entitled to actual and punitive damages totalling $74,999 per identically-situated class member in the state. The Grand Theft Auto series has already been the target of some pretty silly suits (Feb. 19 and links therein), and we can pretty much expect the trend to continue. (And I beg the eventual defense attorney to pass along a public version of the deposition of the stooge named plaintiff, which will have tremendous entertainment value.) One is hopeful that the Class Action Fairness Act will give Take-Two Interactive Software the backbone to resist the extortion attempt. But if not, expect to see $5 coupons for the next edition of Grand Theft Auto in the offing.

Update: Reason’s Daniel Koffler notes “[T]oday, kids might only be able to download explicit content into their video games, but given a few years and a couple of leaps in technology, they might even be able to find hardcore pornography on the Internet.”

Ernst v. Merck opening statements

Fortune has the best coverage of the Thursday opening statements, and notes the contrast between the opening statements of plaintiff’s attorney Mark Lanier, which was illustrated by pictures of a steamroller and a shell game, and Merck attorney David C. Kiernan, which the magazine seems to think made a mistake in respecting the intelligence of the jury by relying on the science behind the case instead of folksy name-calling. “If the company hoped to win points with the public for erring on the side of safety—its stated public rationale for having pulled the drug—the wager may have been naïve.” And if plaintiffs’ attorneys succeed in punishing Merck for taking safety measures, it’s bound to reduce safety in the future. Meanwhile, the New York Times publishes a puff piece on the plaintiff widow fed to the newspaper by the attorneys, barely acknowledging that her husband died of an arhythmia rather than a blood clot, and then failing to note that Roger Ernst was just one of 200,000 victims a year of fatal atherosclerosis (except in the small print of a photo of the coroner’s certificate), and thus was not “healthy and fit” regardless of whether he was a triathlete. The Times reveals a rogues’ gallery of plaintiffs’ lawyers helping out Lanier, without giving any indication of their unseemly background: Benedict Morelli (Nov. 23, 2003) and Fred Baron’s wife, Lisa Blue of Baron & Budd (Jul. 15, 2004; Jun. 17, 2004 and links therein). (Roger Parloff, “Stark Choices at the First Vioxx Trial”, Fortune, Jul. 15; Alex Berenson, “Contrary Tales of Vioxx Role in Texan’s Death”, New York Times, Jul. 15; Alex Berenson, “Jury Is Selected for Case Involving the Drug Vioxx”, New York Times, Jul. 14; Alex Berenson, “In First of Many Vioxx Cases, a Texas Widow Prepares to Take the Stand”, New York Times, Jul. 13; previous Overlawyered coverage: Jul. 1, Jul. 11 (includes my disclaimer), POL Jul. 15). Plaintiffs’ attorney Daniel Keller is liveblogging the trial, albeit not in the most objective fashion. Further coverage: Jul. 29, Aug. 19 ($253 million jury verdict).