Evan Schaeffer points us to the site of a Seattle attorney, J. Michael Gallagher, who uses prom-dressed legal assistants called “Gallagher’s Gals” to attract clients. One would imagine that the family lawyer isn’t worried about alienating half of his potential clientele since he’s also the author of “She’s Not Your Friend – A Man’s Guide To Understanding Women.” Two Seattle law school bloggers comment here and here.
You want a finger? I can get you a finger, believe me.
There are ways, claims Mary Roach in the San Francisco Chronicle, channelling Walter Sobchak. (“Fingering the finger”, Apr. 18 (via Romenesko)). “I would put good money on the digit hailing from someplace other than the hand of a meat or tomato or onion processor who works in a plant that processes ingredients for Wendy’s. People who work in processing plants do not have long, well-groomed fingernails. Long nails are against the rules in these plants.” Scott Herhold of the San Jose Mercury News is reminded of a 1987 hoax involving a finger that wasn’t. (“1987 finger mystery just a lot of tripe”, Apr. 17). Earlier entries: Apr. 9 and link therein.
“U.S. Lawyers Have Little Stomach for Obesity Cases”
“Where are the promised obesity lawsuits?” Evan Schaeffer asks, citing an April 18 Reuters story by Gail Appleman. (He miscredits Overlawyered with the prediction of particular timing, however; we simply quoted a Lawyers Weekly USA headline that in turn relied upon the public statements of plaintiffs’ attorneys.)
Schaeffer goes on to suggest that the several states that have enacted laws protecting the fast-food industry have wasted their time. But of course the states that bar obesity lawsuits aren’t seeing obesity lawsuits. The plaintiffs’ bar bragged about how they used the media to change the playing field for tobacco litigation, and the fast-food industry stepped forward to prevent an instant replay, and won the public debate–thus discouraging many lawyers from spearheading these actions so far ahead of public opinion, especially when state law prevented recovery. But Richard Daynard, speaking at an AEI conference on the subject last month, certainly didn’t sound like he was going to give up: “I think these cases in the long term may have viability.” And John Banzhaf complained just yesterday that a 93% downward revision by the CDC of the estimated effects of obesity was a corporate conspiracy that wouldn’t affect lawyers’ plans for future lifestyle litigation. (Joyce Howard Price, “CDC says obesity deaths overestimated”, Washington Times, Apr. 20). It’s to the credit of the plaintiffs’ bar that many recognize that the lifestyle litigators may have bitten off more than they can chew; one suspects that the true concern is that such litigation could create a backlash against the compensation culture that funds Trial Lawyers Inc.
There’s a strange disconnect in Schaeffer’s argument. He suggests that reformers are deliberately exaggerating the risk of lifestyle litigation to get legislation passed — but what would be the motivation for achieving that goal if the risk is exaggerated? If the plaintiffs’ bar is really opposed to lifestyle litigation, as Schaeffer suggests, why not score some cheap political points by supporting the legislation instead of fighting it so hard? A cynic might suggest that they’re trying to keep the door open for copycat litigation in case the pioneers find a jurisdiction that will let the claims proceed. As it is, the Pelman decision (Jan. 27) will likely cost McDonald’s shareholders millions of dollars in litigation costs.
Knight Center seminar
Yesterday, I had the honor and pleasure of debating Professor Jonathan Turley on litigation reform issues at a Knight Center seminar on “Law and the Courts” in front of a few dozen journalists. Some of the topics we and the audience questioners touched upon all too briefly there merit follow-up in a forum where citations are easier.
Overlawyered posted on the drunk driving car window case we discussed.
In “The Myth of the Ford Pinto Case”, 43 Rutgers L. Rev. 1013 (1991), Gary Schwartz demonstrates that the Pinto’s safety record was comparable to other cars of the era, and that the Mother Jones prediction of hundreds of deaths was wildly off. This site’s editor’s articles, “It Didn’t Start With Dateline NBC” and “Exposing the ‘Experts’ Behind the Sexy Exposés: How Networks Get Duped by Dubious Advocates” are both good reading for more on the Pinto legend and on the topic of lawyers’ attempts to manipulate the media.
There appears to be a tradition that no litigation reform debate can be held without reference to the McDonald’s coffee case. The fact that Professor Turley defends this verdict (and presumably teaches the same to his Torts students) shows that this ten-year-old case is still relevant. The much-better reasoned McMahon v. Bunn-O-Matic threw out a lawsuit with an identical theory of liability for third-degree coffee burns in one’s lap. Professor Turley attacked the decision on the ad hominem grounds that Judge Easterbrook is conservative, but if that were so, one could presumably point to the part of the opinion infected by political bias, and I have yet to see anyone do so.
Professor Turley claims the urban legend of the lawsuit involving the guy who used a lawn mower as a hedge-clipper has infected the tort debate, but a Google search shows that the vast majority of references on the web to this story come from reprints of Turley’s article on the subject. I’d like to see a source for Professor Turley’s claim that this anecdote is taught in law schools; when I was in law school in 1992, the tale wasn’t treated as anything other than an urban legend, as one Chicago 1L shared with the pre-blog Internet urban folklore group. One columnist who didn’t fact-check before passing on e-mail glurge doth not a trend make.
There were a lot of questions about asbestos litigation; Jim Copland’s short overview on the topic is a good starting place, with many links to more detailed analyses.
I disagree with Professor Turley’s claim that medical malpractice rates would go down if there was “experience rating”, mostly because it appears that the malpractice liability system in place today is sufficiently random that past claims are not a good predictor of future claims. (Raymond Lehmann, “Medical-Liability Debate Puts Rate-Setting Complexities Under Microscope”, BestWire, Feb. 22 ($)). I’ve elsewhere commented sardonically on the claims that insurance industry incompetence is the reason behind the malpractice crisis.
Parking under the influence
Under Alabama law, if you’ve had too much to drink and decide to sleep it off in your parked car, officers can and do arrest you for DUI, no matter that the keys never left your pocket. A sheriff explains that, after all, the inebriate might wake up and decide to start up the car, so it’s better to make an arrest (which carries a penalty for a first offense that includes loss of license) before that can happen (“Drunks Arrested For Parking Under the Influence”, WAFF Huntsville, Apr. 13; Sheryl Marsh, Decatur Daily, Apr. 12) (via Balko who got it from DUIblog, who has more).
Compulsive gambler
Donald Carroll says the Borgata casino in Atlantic City was too helpful in getting his credit reinstated. (Judy DeHaven, “Gambler says Borgata took him on limo ride back to debt”, Newark Star-Ledger, Apr. 3). See Apr. 28, 2004 and links from there (& letter to the editor, May 10).
Wal-Mart vs. Kevin Brancato
Kevin Brancato, a Ph.D. candidate at George Mason who heads the masthead at the economics blog Truck and Barter, also publishes a weblog entirely devoted to following the fortunes (policy and otherwise) of the Wal-Mart Corporation, by the name of AlwaysLowPrices.net (see our cites to it on Apr. 13, 2004 and Apr. 6, 2005). In contrast to the Wal-Mart-bashing line taken by so many other sites, Brancato frequently, though not invariably, rises to the defense of the company and the efficiencies of its way of doing business. This has done nothing to prevent Wal-Mart’s lawyers from sending him a cease and desist letter ordering him to vacate the name and URL “AlwaysLowPrices”, a phrase which is of course Wal-Mart’s service mark. (T&B, Apr. 5). Kevin Heller at TechLawAdvisor (Apr. 6) doesn’t think he stands much of a chance if Wal-Mart goes to court.
Medevac helicopters
Getting more of a workout in Pennsylvania these days, what with neurosurgeons and trauma centers becoming scarcer outside the biggest cities (Reid Kanaley and Dawn Fallik, “Medevacs becoming more frequent fliers”, Philadelphia Inquirer, Apr. 18).
Falls off his mountain bike
By reader acclaim, from Canada:
A mountain biker who launched a million-dollar lawsuit after falling off his bike has lit a fire under Collingwood area bike enthusiasts who fear the suit will close their trails. James Leone is suing the Toronto Outing Club and its Kolapore Uplands Wilderness Ski Trails Committee as well as the Town of The Blue Mountains, the Grey-Bruce Trails Network and the province for an accident he had while mountain biking last August.
The 31-year-old personal injury lawyer from Toronto claims he suffered fractured vertebrae and several soft-tissue injuries when his bicycle came to an abrupt stop after hitting a hole in the trail, sending him over the handlebars.
A trail specialist with the International Mountain Bike Association, Laura Woolner, said the case could have an “enormous impact on non-profit clubs” because of the need to buy expensive insurance: “Essentially it could shut them down,” she said. (Tracy McLaughlin, “Lawsuit a threat to trails”, Toronto Sun, Apr. 17). Fark has a long, disrespectful thread. More: the hazards of mountain biking also figured in Ted’s Mar. 29 entry.
Confucianism and hyperlitigation
Decline and Fall of Western Civilization (that’s the name of the blog) on some antecedents of overzealous use of the courts (lower case in original):
it seems we are far from the first society to be so enthralled. china under the 17th c qing dynasty saw the rise of the songshi, the “litigation master”, who was blamed for a massive litigation backlog that overwhelmed the system of adjudication and worked to undermine the classical and confucian principles of harmonious social behavior. (the songshi were ultimately proscribed in the 18th and 19th c.) the elizabethan pettifogger is another derisory example from an age that saw itself awash in trivial litigation.
“Gaius Marius”, who writes the blog, has more on Confucius-influenced attitudes toward litigation as disharmonious and a breach of the social peace; the word songgun apparently translates from the Chinese as “litigation hooligan”. All that plus a kind reference to this site as “invaluable” (Mar. 14).