Overlawyered: Chronicling The High Cost Of Our Legal System

Yet more from the publicity file

Your editor was recently quoted in Reason (Brandon Turner, “Citings: Snow Job”, Jan., not online), where he predicted (in an interview conducted this fall) that the U.S. Supreme Court would overturn the Ninth Circuit’s decision in Hernandez v. Hughes Missile Systems, the ADA right-to-return-after-drug-misconduct case. (How accurate was this prediction? See Dec. 13). I also contributed a quote this fall when the New York Times took a look at New Jersey’s office charged with cracking down on unethical attorneys, which it’s fair to say has its hands full (John Sullivan, “In New Jersey, Rogue Lawyers Are on the Rise”, New York Times, New Jersey edition, Oct. 19, not online). And the Minneapolis Star-Tribune, covering local attorney Elliot Rothenberg’s challenge to a rule requiring all Minnesota attorneys to enroll in “elimination of bias” classes, mentions this website and our description of the program as “compulsory chapel” (see Nov. 21) (“Attorney challenging state requirement of anti-bias classes for lawyers” Jan. 2).

Back in October, we were quoted by Legal Times’s Jonathan Groner in an interesting piece on a little-publicized crusade by “public interest” lawyers to extend the constitutional right to taxpayer-provided counsel, ushered in with Gideon v. Wainwright for persons facing criminal prosecution, to civil matters such as child custody fights (“On a Crusade for a ‘Civil Gideon'”, Legal Times, Oct. 20). The idea, quietly promoted by the Soros-backed Public Justice Center and by NYU Law’s Brennan Center, is far-reaching and actually quite scary in its implications. See George Liebmann, “‘Civil Gideon’: An idea whose time has passed”, Daily Record, Jul. 18, reprinted at Calvert Institute site. Advocates were hoping to convince the Maryland high court to embrace civil Gideon, in what would have been the first such ruling in the nation, but this month the court dodged the issue in ruling on the case, Frase v. Barnhart. (Ann W. Parks, “Top court sidesteps ‘Civil Gideon’ issue, strikes down custody conditions”, Daily Record, Dec. 12; Jonathan Groner, “Inadmissible — No ‘Civil Gideon’ — for Now”, Legal Times, Dec. 15).

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“Woman Files $10M Suit Vs. Starbucks”

Janine Arslanian alleges “extensive and gross second and third degree burns to her right hand and arm” from a spill of Starbuck’s coffee. Gee, it couldn’t possibly be the case that the plaintiffs’ bar misled us when they said the Stella Liebeck v. McDonald’s coffee case (which we discussed Dec. 10) was unique because it was only McDonald’s coffee that was hot enough to cause serious burns, could it? (Jamie Herzlich, Newsday, Dec. 30).

Read On…

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Possum party poopers

The Appalachian town of Brasstown, North Carolina, had a tongue-in-cheek tradition of celebrating the new year by lowering, instead of a ball, a captured and fattened possum in a plexiglass cage, followed by a release of the animal. This New Year’s Eve, however, the hundreds of attendees were disappointed when, hours before the event, a PETA member threatened legal action against the organizer, who was sufficiently frightened off by the possibility of needing to hire lawyers to back off the annual event. (Jeffrey Gettleman, “A New Year’s Tradition Lives, but the 4-Legged Star Doesn’t”, New York Times, Jan. 2; Jeffrey Gettleman, “Keep Your Ball. We’ve Got the Possum.”, New York Times, Dec. 31). I suppose PETA wasn’t deterred by the anti-tort-reform propaganda going around the blogosphere that falsely implies that volunteers are protected from lawsuit (Dec. 12).

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Also from the publicity file

National Journal, the ultimate Washington insider’s magazine, gave this site a nice write-up earlier this month. It says we provide “juicy morsels” as well as “ammunition” in legal reform battles (Peter H. Stone, Dec. 6, not online to nonsubscribers at least). In Claims magazine, for insurance professionals, columnist Kevin Quinley names The Rule of Lawyers (St. Martin’s) as #3 in his list of 2003’s “Top Ten Risk Management Books” (Dec.), calling it “a devastating critique of the current wave of class action and mass tort litigation” and “good catharsis” for risk managers. And talk radio WGOW-FM in Chattanooga picks this site’s much-visited personal responsibility page as its “Website du Jour” for yesterday.

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U.S. lawyer count now exceeds 1 million

Welcome USA Today readers: the national newspaper reports that the number of lawyers in the U.S. now exceeds one million, and that the number of students taking the Law School Admission Test is nearing the previous record, set in 1990-1991. The article quotes yours truly at some length and mentions this website. “Lawyers say they are busy. Fifty-three percent say their greatest challenge is managing increased workloads, according to a November poll by the Affiliates, a lawyer and paralegal staffing service.” (Del Jones, “Lawyers, wannabes on the rise”, USA Today, Dec. 26) (also reprinted, via Gannett News Service, in Indianapolis Star, Arizona Republic, Salt Lake Tribune, and others)

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U.S. taxpayers won’t pay Lewinsky’s legal fees

Former White House intern Monica Lewinsky cannot recover the $1.1 million she spent on legal fees for the independent counsel investigation of President Clinton, a federal appeals panel ruled today. (Carol D. Leonnig and William Branigin, “Lewinsky Denied Reimbursement of Legal Fees,” Washington Post, Dec. 30; “Court rejects Lewinsky legal fees request,” Reuters, Dec. 30).

For the federal government to reimburse her under the applicable independent counsel statute, Lewinsky had to show that she would not have had to hire a lawyer, save for the independent counsel’s investigation. The three-judge panel of the U.S. Court of Appeals for the D.C. Circuit rejected Lewinsky’s argument that “there would have been no investigation of her … conduct had it not involved the President,” noting that the independent counsel’s office argued that Lewinsky was accused of lying about her affair and perjuring herself. The panel also noted arguments by the independent counsel’s office that Lewinsky initially refused an immunity deal and incurred more than $800,000 in legal fees before negotiating a deal she found acceptable. The panel’s per curiam opinion, in In re Madison Guaranty Savings & Loan, No. 94-00011, is available here.

“For Their Own Good: Limit Students’ Rights”

Richard Arum (see Nov. 14) writes again about the perverse effects of litigating students’ rights have had on public school education. A 1975 Supreme Court case, Goss v. Lopez, extended due process rights to student discipline, literally making every effort by a school to punish a student for misbehavior a federal case. (Washington Post, Dec. 29) (via Jacobs).

Naturally, teachers and schools respond by under-disciplining rather than risk being told that their discipline was a civil rights violation. But the effects ripple from there. School districts adopt “zero tolerance” policies so that they can’t be accused of abusing their discretion. Private school discipline is a matter of contract, rather than government due process, so the Goss line of cases does not affect them; the result is just another way in which the federal court system has disadvantaged public schools relative to private schools. Wealthier parents substitute away from public schools to private schools, reducing political support for public schools and disadvantaging the schools further. The ones who lose the most? The children from poor families who have no choice but to attend a public school system where lack of discipline makes learning unreasonably difficult.

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Sometimes the system works

Despite much hue and cry about the September 11 Victim Compensation Fund (see Dec. 29, 2003, almost immediately below, and Apr. 2-3, 2003, Sept. 9-10, 2002, Oct. 26-28, 2001), more than 95 percent of eligible families ultimately opted to file claims with the fund rather than going to court. (Jennifer Barrett, “A Dramatic Success,” Newsweek, Dec. 23 (via msnbc.com)).

More than 6,450 claims were received by the December 22nd midnight deadline, with about 70 of the remaining 150 eligible families having decided to pursue a lawsuit instead of filing with the fund. Other families have chosen to forego both a lawsuit and the administrative fund, saying others need the money more than they do. “None of us were dependent on” our sister, one such family member explained, “and none of us wanted to gain from her death.” (Stephanie Saul, “Foregoing the WTC Victims’ Fund,” NYNewsday, Dec. 23).

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Latest newsletter

Our latest free newsletter, summing up the past 3-4 weeks’ worth of items on the site, went out this afternoon to its 2100+ subscribers. If you didn’t receive it, you can sign up here for future mailings and to read older newsletters. It’s a great way to keep up with items on the site you may have missed.

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