Updating our Dec. 15 report: former U.S. Rep. Bill McCollum has been hammering former HUD secretary Mel Martinez for his past work with the Florida Academy of Trial Lawyers and for his donations to Democratic candidates including an opponent of former Republican Sen. Connie Mack. In response, “Martinez campaign officials said McCollum had broken Ronald Reagan’s ’11th commandment’ to not speak ill of other Republicans.” (Ken Thomas, “Unity suffering in GOP Senate race”, AP/Sarasota Herald Tribune, Feb. 21; Joel Eskovitz, “McCollum goes on attack against Martinez”, Naples Daily News, Feb. 14; Ken Thomas, “McCollum criticizes Martinez’s work with trial lawyers”, AP/San Jose Mercury News, Feb. 10; Adam C. Smith, “GOP is selective in lashing lawyers”, St. Petersburg Times, Jan. 29). Update Sept. 3: Martinez wins primary.
Update: Eisenberg/Miller study
The Class Action Coalition releases a refutation of the much-hyped Eisenberg/Miller study (Jan. 16) to be published in the forthcoming Journal of Empirical Legal Studies purporting to analyze trends in attorneys’ fees in federal and state class actions. In an analysis of published opinions, Eisenberg and Miller claim that attorneys’ fees in class actions have been stable over time, and that state courts have not been more generous than federal courts in such cases.
But, say the Class Action Coalition, the methodology of the study biases the result; by relying solely on published opinions, the study omits the numerous unpublished settlements. Moreover, as the authors acknowledge, the mix of federal settlements (where securities cases tend to be litigated) is different than state settlements under current law. By averaging all state courts, the paper ignores the fundamental problem of magnet jurisdictions. Finally, the study makes no effort to distinguish between announced and actual relief to the class: a $20 coupon is treated as equivalent to a $20 check. “In short, in state court cases, the relief actually recovered by class members is often far less than what was ‘advertised’ in the settlement proposal. The authors essentially assume away this problem — the key problem with state court class action settlements.”
The paper was debated at an AEI event today.
In Madison County, a totally spontaneous outpouring
The editorialists of the St. Louis Post-Dispatch have described the court system of nearby Madison County, Ill., as aromatic (see Sept. 26, Jan. 5, etc., etc.), but now a group called Victims and Families United has formed to defend the county’s far-famed litigation culture. According to the group’s spokeswoman, “behind every lawsuit is a real victim or family who is seeking justice and democracy”. (Sanford J. Schmidt, “Victims say suits justified, to offer malpractice fixes”, Alton Telegraph, Feb. 17). Was the formation of this group a totally spontaneous outpouring of gratitude by the citizenry of Madison County toward its benefactors in the plaintiff’s bar? Some have their doubts: David Giacalone (Feb. 19) is one who suspects that these particular grass roots “got fed some fertilizer”.
Common Good “Five worst lawsuits of 2003”
Common Good, the organization founded by author/attorney Philip K. Howard (The Death of Common Sense, The Collapse of the Common Good) and dedicated to “Reforming America’s Lawsuit Culture”, has announced its picks for Top 5 Ridiculous Lawsuits awards of 2003, in what is intended to be a continuing annual series. Two of the five have been written up previously on this site: Blair Hornstine’s suit demanding to be made sole valedictorian of her school in Moorestown, N.J. (see Aug. 21, Jul. 12 and links from there) and a jury’s award of $10 million against the state of Washington over an assault committed in part by two foster kids in the state’s foster care program (see Nov. 24). The other three:
* Perri v. Furma Restaurant, Inc. (Illinois Court of Appeals, Jan.): “Parents can sue Chinese restaurant for hot tea burn, even though a child from their family caused the burn by spinning the lazy susan.”
* Gary Dailey v. Board of Review, et. al (Supreme Court of Appeals of West Virginia, Nov.): “Truck driver, who lied about having driver?s license, wins suit to get unemployment benefits.”
* Ellen Hall v. Tim Henn, et. al (Illinois Supreme Court, Dec.)(unpublished opinion): “Woman who broke her arm on backyard snow luge can sue neighbor who invited her and other friends and neighbors to use the luge.” The court held that a state statute protecting landowners from liability for opening their land to the public did not apply to invited guests and that the luge could be “considered an ‘unnatural and dangerous condition’ even though the victim called and asked if she and her daughter could come over and use it.”
No to the FMA
Drafted with the specific intent (at least on the part of two of its best-known framers) of banning a wide range of legislatively enacted “civil unions” as well as same-sex marriage, the ghastly Federal Marriage Amendment is anything but conservative: it would succeed in damaging both federalism and the principle of separation of powers. (Jacob Levy, “Law Breaker”, The New Republic Online, Feb. 18). See Alan Cooperman, “Little Consensus On Meaning Of Marriage Amendment”, Washington Post/Constitution Center, Feb. 14 (“principal drafters” Profs. Robert George and Gerard Bradley acknowledge that they intended to ban some forms of civil unions); letter from several libertarian/conservative law professors opposing FMA (Volokh Conspiracy, Sept. 11).
Yet more links: MarriageDebate.com (published by FMA supporters, but airing both sides); FamilyScholars.org (also a mix of views); Volokh Conspiracy (numerous posts, use search function); AndrewSullivan.com; LawfullyWedded.com; Jack Balkin, Feb. 14; Prof. Bainbridge, Jan. 21 (endeavoring to defend Bush stance); Three Years of Hell, Feb. 11 (arguing that FMA would merely curb judicial activism on civil unions); David Horowitz, “Wrong Idea, Wrong Time”, TechCentralStation.com, Nov. 24; David Brooks, “Give everyone access to the power of marriage”, New York Times/International Herald Tribune, Nov. 25.
Brawl escalates into $1.3 M legal malpractice verdict
A Hinds County, Mississippi, jury has ordered the well-known law firm of Baker, Donelson, Bearman, Caldwell & Berkowitz to pay $595,000 in compensatory and $750,000 in punitive damages to 34-year-old Jack Muirhead, Jr. The case began when Muirhead, who had been attending an employee meeting, got into a brawl in a hotel parking lot which resulted in a $2,900 jury verdict against him. An insurer for Muirhead’s employer denied coverage on the advice of the Baker, Donelson firm that the altercation was not employment-related, and Muirhead sued, first winning a $500,000 bad faith settlement against the insurer and then cooperating with it to sue the law firm. After the latest verdict, the attorney for Baker Donelson noted that the plaintiff “has gotten $1.845 million for a parking lot brawl. The guy who lost the fight got $2,900.” (Jimmie E. Gates, “‘Wrong’ advice nets damages”, Jackson Clarion-Ledger, Feb. 12; “Law firm hit with $595,000 judgment”, Feb. 11). Says an editorial in the Greenwood Commonwealth: “Pundits have argued that real tort reform will only come when the lawyers start suing the other lawyers…. that time has arrived.” (“Lawyers feel sting of absurd verdict”, Feb. 15)
They came to stay
Careful about letting a friend or relative crash at your house: various Floridians found themselves in for legal complications when temporary guests decided they didn’t want to leave. Calling the sheriff doesn’t necessarily work, and it’s legally hazardous to have locks changed, cut off utilities or put the interloper’s possessions out on the street. (Marcus Franklin, “Law slanted in favor of unwelcome guests”, St. Petersburg Times, Feb. 17).
John Edwards and the money power
“We are not going to lose the race for lack of funds”, said Dallas trial lawyer Fred Baron, finance co-chairman of the Edwards campaign (and poster boy for legal ethics) as the Wisconsin primary approached. (Rob Christensen and John Wagner, “Edwards sees no reason to surrender”, Raleigh News and Observer, Feb. 12). The challenge for Edwards’s fund-raising was spelled out by the Washington Post last month (Paul Farhi and Thomas B. Edsall, “Filling War Chests Key As Campaigns Progress”, Jan. 21): “The North Carolina senator has received a higher percentage of large donations than any other major candidate — 83 percent were between $1,000 and $2,000, the maximum allowed by law. Many of these donations came from plaintiffs’ attorneys, members of Edwards’s former profession. This means that many of Edwards’s donors have ‘maxed out’ and can give no more money. For Edwards to become fully competitive in the race for cash, he will have to find new contributors beyond his trial-lawyer base.” Why, even many of the paralegals, receptionists, bankrupt support staffers of law firms and their nonvoting husbands have maxed out (see Hill News, May 7, 2003). For more on Edwards’ fund-raising, see Feb. 3; Jan. 27; Jan. 23, 2004; Aug. 5 and Apr. 7-8, 2003; and Jul. 18 and May 1-2, 2002. More: Kerry press secretary Stephanie Cutter imprecisely describes Edwards campaign as “wholly funded by trial lawyers” (Adam Nagourney and David M. Halbfinger, “Kerry and Edwards Square Off as Dean Abandons Campaign”, New York Times, Feb. 19)
Edwards’s self-reinvention as the candidate of trade protectionism has provided another reason for sensible voters to steer clear of him. As Alex Tabarrok notes: “In his stump speech, John Edwards is fond of empathizing with the plight of a 10-year old girl ‘somewhere in America,’ who goes to bed ‘praying that tomorrow will not be as cold as today, because she doesn’t have the coat to keep her warm.’ Yet, as John Tierney points out, ‘clothing has become so cheap and plentiful (partly because of textile imports, which Mr. Edwards has proposed to limit) that there is a glut of second-hand clothing, and consequently most clothing donated to charity is shipped abroad. The second-hand children’s coats that remain in America typically sell for about $5 in thrift shops.’ (emphasis added)”. See “Nader Searches for His Roots”, New York Times, Feb. 15. To be sure, Edwards has some familiarity with the internationalization of markets: when the populist Senator and his wife left their Massachusetts Avenue mansion to trade up to a nicer mansion on P Street, they disposed of the old one “for $3 million to the Hungarian government for use as an embassy”. (Marc Fisher, “Regular Guys Who Live In Mansions”, Washington Post, Feb. 17). See also Byron York, “John Edwards Cares about YOU!”, Roll Call/National Review Online, Feb. 17. (& welcome WSJ “Best of the Web”, Andrew Sullivan, Mickey Kaus, and (thanks!) Steve Bainbridge readers)
“My Big Fat” lawsuit threat
Fox, who was previously on the offense when its sister network Fox News complained about Al Franken’s use of “fair and balanced” (Nov. 22 and links therein), now finds itself subject to a demand letter from Gold Circle Films, who complains that the title “My Big Fat Obnoxious Fiancé,” a reality prank series that ends Monday, is too similar to the 2002 movie title “My Big Fat Greek Wedding.” (Sarah Hall, “Big Fat Stupid Lawsuit”, E! Online, Feb. 18). Neither the makers of the 1992 Swedish movie “My Big Fat Father” nor, to bring it full circle, Al Franken, who wrote the 1996 book “Rush Limbaugh is a Big Fat Idiot,” have commented.
This is not just a 21st-century issue. Urban legend has it that a movie studio complained that the movie “A Night in Casablanca” would be confused with the more memorable Humphrey Bogart movie “Casablanca”; Groucho Marx responded (perhaps as a publicity stunt) in a letter by noting that the Marx Brothers were brothers long before Warner Brothers was using the term. “I am sure that the average movie fan could learn in time to distinguish between Ingrid Bergman and Harpo. I don’t know whether I could, but I certainly would like to try.” (Groucho Marx, 1946).
Another idea: don’t accept rides from fugitives
In September 1997, Evanston, Ill. police sought to arrest Tracy Parham, who was wanted on charges including theft and narcotics. Parham led them on a high-speed chase that ended when he crashed his sport-utility vehicle into a building. Two teenagers in the back seat of Parham’s SUV were injured and sued the city of Evanston. In 2002 a jury awarded one of the teenagers, Salonica Prado, $11 million, in a verdict now on appeal; the other passenger’s suit is pending. Evanston says the verdict is likely to cut into the city’s services budget and that it may dip into the proceeds of a $9 million bond issuance to pay that and other lawsuit payouts. (Manya A. Brachear, “Lawsuits adding up, Evanston officials say”, Chicago Tribune, Feb. 18). Richard Ryan, attorney for Evanston, “said he felt frustrated because the jury had not been allowed to hear much of the City’s evidence.” (Mary Gavin and Alan Worley, “City Zapped with $11 Million Judgment in Lawsuit over Car Chase”, Evanston RoundTable, Jun. 19, 2002).