Overlawyered: Chronicling The High Cost Of Our Legal System

Edwards and jury selection

The Washington Times does some reporting on John Edwards’s trial practice in North Carolina. (“Edwards’ malpractice suits leave bitter taste”, Aug. 16). Reporter Charles Hurt talks to local doctors about Edwards’ cerebral palsy cases and also relates the following story about the role of jury selection in one of the future senator’s prominent cases:

“In 1991 [in Wake County], he won $2.2 million for the estate of a woman who hanged herself in a hospital after being removed from suicide watch. … During jury selection, Mr. Edwards asked potential jurors whether they could hold a doctor responsible for the suicide of their patients.

“I got a lot of speeches from potential jurors who said they did not understand how that doctor could be responsible,” Mr. Edwards recalled in an interview shortly after the trial. Those persons were excluded from the jury.

The article doesn’t say whether Mr. Edwards had to use up his peremptory challenges against the skeptical jurors or was able to get them purged for cause. Either way, it’s a reminder of one way the political process is both more open to diversity and more responsive to public opinion than the trial process: you can’t eject citizens from the voter pool just for holding the wrong sorts of views.

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Fairy shrimp v. people

A little-remarked section of the 2004 National Defense Authorization Act amended the Endangered Species Act to require federal agencies to consider impact on national security before designating land as a “critical habitat.” Thus, the Fish & Wildlife Services’ new critical habitat designation for the fairy shrimp–inch-long crustaceans that live in “vernal pools” (i.e., mud puddles)–no longer includes over 3000 acres of Camp Pendleton, which had suffered tortuous restrictions on military training under the old version of the law. (“Habitat plan includes land in county”, San Diego Union-Tribune, Apr. 29; Mark Mahoney, “Environmental Update”, Spring 2004; Darren Mortenson, “Pendleton and the environment – Marines seek sweeping exemptions from laws”, North County Times, Oct. 16, 2003; Joseph A. D’Agostino, “Endangered Species Envelop Marines in California”, Human Events Online, Feb. 24, 2003; Bill Horn press release, Jun. 24, 2002; Suzanne Struglinski, Greenwire, “Marine Corps claims species impede training at Calif. base”, undated).

Not so lucky Los Angeles International Airport, where 108 acres have been designated a critical habitat–even though the only shrimp found there have been non-hatched eggs, and even though letting standing water on the airport grounds creates an ecosystem that attracts birds, which in turn endanger airplanes. (Jennifer Oldham, “Shrimp Pose Big Problem for LAX”, LA Times, Aug. 15; Professor Bainbridge blog, Aug. 15). The LA Times uncritically quotes FWS officials as saying they had “no choice” because of a federal court order, but in fact the order (Building Industry Legal Defense Foundation v. Norton, 231 F. Supp. 100 (D.D.C. 2002)) merely required the agency to create a critical habitat. Indeed, the order was issued because a previous FWS designation failed to adequately evaluate the economic impact, as the law required. More litigation is likely.

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Latest newsletter

The latest installment of our free periodic newsletter went out this afternoon to its c. 2300 subscribers, covering the last couple of weeks’ worth of postings in telegraphic, even punchy style. It’s a great way to keep up with items you may have missed; when you’re through, pass on the email to a friend or three to let them know about the site. Sign up today, right here.

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Imagine if it had been about the money

“[Attorney Allen] Lowy said that he was not fazed by the suggestion that [New Jersey Gov. James] McGreevey might resign. He said he and Mr. [Golan] Cipel were not seeking a financial settlement, ‘We weren’t concerned with the money,’ Mr. Lowy said.” (David Kocieniewski, “A Governor’s Downfall, in 20 Wrenching Days”, New York Times, Aug. 15). “Sources in McGreevey’s administration said Saturday that Cipel originally demanded $50 million [to not press a harassment complaint] but the figure dropped to $5 million as negotiations progressed.” (“Man in N.J. Gov. Case Says He Is Straight”, AP/ABCNews.com, Aug. 15). More: New Jersey Law Journal, Sept. 8.

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Batch of reader letters

Four more entries from our correspondence stack on our letters page. Topics include: why autopsies don’t figure more prominently in malpractice cases, whether the legal climate deserves all the blame for the shrinkage in Philadelphia obstetrics, what happens when you tell your homeowners’ insurance company that you run a controversial website, and another lawsuit challenging the 1998 tobacco settlement.

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When the judge is a curmudge, cont’d

Is there something about the name Sam that does it? U.S. District Judge Sam Kent in Texas has long been famed for his colorful excoriations of lawyers in his court whose practice does not come up to his standards (see May 14, Sept. 6, 2001 and links from there). Now, per Curmudgeonly Clerk (Aug. 11) who got it from Begging to Differ, Judge Sam Sparks, another federal district court judge in Texas, has just penned an opinion complaining that his duties in supervising the lawyers in a commercial dispute now resemble those of “a person who supervised kindergarten. … The Court simply wants to scream to these lawyers, ‘Get a life'”. (Klein-Becker v. Stanley, PDF)

Update: Virginia primitive, take 6

More developments regarding Virginia’s antigay law, much criticized in this space (see May 31 and links from there): the state’s Attorney General, Jerry Kilgore, has put forth an opinion (which of course does not bind the courts) construing the statute narrowly so as not to restrict persons of the same sex from entering private contractual arrangements that convey any “rights or privileges not exclusive to the institution of marriage”. (“The law”, Style Weekly (Richmond magazine), Jun. 30; Lisa Provence, “Not gay: Marriage affirmation sparks protests”, The Hook (Charlottesville), Jul. 17; Adrian Brune, “ACLU to challenge Va. union ban”, Washington Blade, Jul. 16). The law is already being cited by some attorneys as reasons why persons in Virginia should be considered free to disregard not merely civil unions, but even court orders arising out of such unions, originating in other states. Attorneys for Lisa Miller-Jenkins, who recently moved to Virginia from Vermont after the breakup of a civil union in the latter state, are citing the Virginia law to justify their client’s reported refusal to comply with a two-month-old Vermont court order awarding her former partner, Janet Miller-Jenkins, rights to visit the daughter born to Lisa during their time together. “State law forbids Virginia courts from handling legal custody and parental rights disputes if proceedings are already under way in another state.” (Calvin R. Trice, “It’s Virginia vs. Vermont in custody case”, Richmond Times-Dispatch, Aug. 14; Justin Bergman, “Judge delays ruling on jurisdiction in lesbian custody battle”, Newport News Daily Press, Aug. 13; Jonathan Finer, “Custody Case Puts Lesbian Civil Union On Trial”, Washington Post/National Constitution Center, Aug. 7)(via Tim Hulsey). And some gay residents of the Dominion have reacted to the law by deciding to move away. Update Aug. 25: Va. judge takes jurisdiction of custody case notwithstanding court order (Washington Post). More background on case: Washington Blade, Aug. 20. Further updates Dec. 16 (I challenge conservative commentator David Frum’s description of the case); Aug. 26, 2006 (Vermont Supreme Court rules against Miller); Nov. 29, 2006 (Virginia appeals panel, reversing lower court, rules against Miller).

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Update: Compaq beats glitch suit again

Following the spectacular $2 billion class action settlement in Beaumont, Texas against Toshiba for a reported data glitch in its laptop computers (see Nov. 3, 1999 and later coverage) class action lawyers descended with copycat suits against Compaq and other rival laptop makers. A federal class action was however rejected (see May 11-13, 2001) and now the Texas Supreme Court has rejected a national class action filed in Texas state courts. However, “attorneys for the class aren’t throwing in the towel and say a statewide class action still is possible”. Besides proffering other defenses, a lawyer for the company “contends that a buffer in Compaq’s computers prevents problems with the FDC [floppy disk controller].” (Mary Alice Robbins, “Court Boots Nationwide Class Action Against Compaq”, Texas Lawyer, May 18).

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Opportunistic dad sent packing

According to what the court described as “overwhelming and credible evidence,” Derrick Williams refused to acknowledge that he was the father of Lisa Farmer’s unborn child, or have any contact with Farmer. Then he learned that she’d been awarded $150,000 after being in a car accident that claimed the life of the fetus. Then he decided that he really was a deeply devoted sort of dad after all and claimed half the money. Eventually the Mississippi Supreme Court told him to get lost. (“Mississippi gets it right” (editorial), Chicago Tribune, Aug. 10).

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Client neglect: Fagan ordered to pay $3.4 million

Attorney Edward Fagan, much publicized for his role in Holocaust and other reparations controversies, “is facing a $3.2 million legal malpractice judgment for suing the wrong party in a personal injury case and failing to oppose its dismissal.” Former client Allen C. Tavel sued Fagan, saying he had neglected a product liability case against Honda Motor Corp. and the manufacturer of a seat belt that allegedly failed over an accident in which Tavel was seriously injured. “Fagan did not contest Tavel’s malpractice suit, which resulted in a default judgment. In May, Justice Shirley Kornreich of Manhattan Supreme Court awarded Tavel $1.2 million for his economic losses and $2 million for pain and suffering.” (Anthony Lin, “Personal Injury Client Wins Malpractice Award Against Holocaust Victims’ Lawyer”, New York Law Journal, Aug. 12). Fagan has been the subject of extensive coverage on this site, including Jun. 24-25, 2002; Apr. 2 of this year and links from there. More: Feb. 5, 2005.

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