Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘baseball’

Updates

More developments in previously covered controversies:

* Where credit is due dept.: lawyers for Patrick Hayashi, whose squabble over ownership of a souvenir Barry Bonds home run baseball grew so costly as to eat up the ball’s auction value, agreed to roll back their fees so that their client would emerge from the case with something of value other than the experience (Gwen Knapp, “Finally, in Bonds ball case, someone shows some class”, San Francisco Chronicle, Dec. 30)(see Jul. 1).

* National talk show host Joe Scarborough, criticized here among other places for naming a company as “Rat of the Week” without disclosing that his partners at Pensacola’s Levin Papantonio were actively suing it (see Sept. 15), says he’s now stopped receiving a stipend from the law firm, though name partner Fred Levin says Scarborough remains associated with the firm and may even do a commercial for it (Amber Bollman, “Scarborough: No pay from law firm”, Pensacola News Journal, Dec. 30; Howard Kurtz, “Bad News Bearers: Up To No Good?” Washington Post, Dec. 29)(low in piece) (via Lori Patel, Law.com).

* After nearly three weeks of testimony and an hour and a half of deliberations, a jury has rejected a lawsuit against Ford Motor Company over the death of New Jersey state trooper Scott Gonzalez (see Oct. 27, 1999). Gonzalez was killed in a shootout with a mental patient, and lawyers for his widow had alleged that he might have survived had his Ford Crown Victoria been designed so that a crumpled fender did not block his door from opening; they also sued the killer’s parents (who were released from the suit shortly before the recent trial) and Hechler & Koch, the maker of her husband’s police gun, because it briefly jammed after he’d fired seven shots from it; the latter suit resulted in a settlement providing less than $50,000 to Maureen Gonzalez. (Jenna Portnoy, “Jury rules Ford not liable in trooper’s shooting death”, Easton, Pa. Express-Times, Dec. 19)

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“Three Former Players Sue MLB Over Pension”

Doug Pappas’s excellent “Business of Baseball Weblog” covers a recent lawsuit against Major League Baseball filed by former players upset that the rules were changed to make it easier to vest for pensions.

They allege that they were discriminated against when the pension rules were amended 22 years ago to reduce the vesting period for pension benefits from five years to 43 days and for medical benefits from five years to one day, but only for players then active. In their world, it’s unlawful discrimination to negotiate better benefits for current employees without making those benefits retroactive for all existing retirees. In our world, it’s not. Indeed, other groups of retired players have sued and lost over this issue.

The lawsuit also complains about a one-time $10,000 payment made to former Negro Leaguers in 1997 who also weren’t eligible for the pension. (Pappas blog, Oct. 17; “Lawsuit alleges discrimination due to race”, AP, Oct. 16; complaint). When a lawyer files a class action, he or she is representing only a few members of the class who have retained that lawyer (called “the named plaintiffs”, since they are named in the caption of the suit), and is requesting the right to represent absent members of the class, who may or may not support the suit, and may or may not elect to opt out even if the court certifies the class. But the AP coverage, as is common in journalistic coverage of class actions, (see, e.g., Oct. 21), inexplicably focuses several paragraphs on prominent absent class members who had nothing to do with the lawsuit.

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“N.C. Senate approves medical malpractice bill”

Interesting medical malpractice reform bill passed in the North Carolina Senate just before Hurricane Isabel (which is about to take out my power now) hit –supported by Democrats and opposed by Republicans. “Pretrial reviews in malpractice cases would come from a three-member panel appointed by a judge but with input from lawyers in the case. Panel recommendations would be entered into evidence, and a plaintiff or defendant who took a case to court despite a negative recommendation and still lost would have to pay attorney fees to the opposing side.” Insurers and Republicans seem to be unhappy with the creation of a state insurance fund, increased reporting requirements for insurers, and the lack of a damages cap. (Scott Mooneyham, AP, Sep. 16; “AIA: NC. Senate Med-Mal Bill Lacking”, Insurance Journal, Sep. 18). “A special House committee will consider the medical liability issues, but the full House will not act on any measure before May.” (Matthew Eisley, “Malpractice changes offered”, The News & Observer, Sep. 17). Game theory scholars will be interested to note that the bill requires juries who find negligence to choose between a plaintiff’s proposed damages figure and a defendant’s proposed damages figure–what is sometimes called “baseball arbitration.” This effectively constrains rational trial attorneys to perform a balancing act and make reasonable requests–the higher the demand (or the lower the counter), the more reluctant a jury to go along. This alone should encourage settlements by narrowing the difference between parties. In conjunction with what will likely be a persuasive pre-trial panel expert report, it is hard to imagine circumstances when attorneys would ever let a case get to a jury verdict.

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Valued Senate employee

Baseball Crank (Aug. 27) links to a pro se employment lawsuit conducted in memorably abusive fashion (PDF) by an employee of the U.S. Senate Sergeant at Arms, which was finally thrown out of court Aug. 22 after years of litigation. And he wonders: how much of this sort of thing do federal managers have to deal with? We must part company from him, however, on his view that disabled-rights law, harassment law and the like are somehow brainstorms of the Democratic Party — all were crucially advanced by Republican presidents and judges, notably the senior Bush who was said to view the ADA as his proudest domestic achievement.

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Calif. bounty-hunting, again

The Los Angeles Times’s Michael Hiltzik doubts that the cleanup of the Trevor Law Group spells an end to shakedown litigation under California’s Section 17200: “As I write I’m looking at a letter sent two weeks ago by a Bay Area lawyer to a San Jose pool company, offering to settle a potential 17200 claim over a supposedly deceptive newspaper advertisement in exchange for a ‘reasonable attorney’s fee’ of $5,000” (“Consumer-Protection Law Abused in Legal Shakedown”, Jul. 21). Hiltzik also relates an amusing anecdote about how the Trevor lawyers helped seal their fate: “The group also made the mistake of picking on the wrong victims; thinking that it was suing only ma-and-pa service stations, it named, apparently unwittingly, a couple of repair shops owned by the big tire maker Bridgestone/Firestone North American Tire, which took umbrage and put Sybesma [experienced defense lawyer Edward Sybesma of Costa Mesa’s Rutan & Tucker] on the case. ‘How was I supposed to know this was Bridgestone/Firestone?’ Sybesma recalls one of the Trevor lawyers lamenting one day — a line one wouldn’t be surprised to hear during an episode of ‘America’s Dumbest Criminals.'”

The Wall Street Journal’s free OpinionJournal has now posted our editor’s op-ed on section 17200, which appeared in the paper last Tuesday and was linked here in different form last week (see Jul. 22). (Walter Olson, “The Shakedown State”, OpinionJournal.com, Jul. 27.) Reader comments, too. And Baseball Crank (Jul. 27) quotes extensively and informatively from Justice Stephen Breyer’s dissent in the Supreme Court’s recent refusal to hear the 17200 case against shoemaker Nike.

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Rose Gets Nullified

The mock Pete Rose trial ESPN just had on TV had interesting results. 11 jurors believed Rose bet on baseball, which carries with it an automatic banishment. But of those 11, seven voted to allow Rose onto the Hall of Fame ballot.

I, for one, think Rose’s permanent expulsion should be just that — permanent. But that’s a post for a different website. What’s interesting about the faux ESPN trial is that Alan Dershowitz, the pseudo-prosecutor, asked judge Catherine Crier to charge the jury with two questions: first, did Rose gamble, and if so, shoud he be given the ole’ heave-ho? Johnnie Cochran, the defense attorney (why is this starting to sound like the lead up to a bad punchline?), objected, saying Dershowitz was changing the rules. But Dershowitz’s strategy was clear — he wanted the jury to have to reconcile their factual finding of guilt with their desire to acquit. Crier ruled in favor of Cochran.

If this were a real criminal trial, the charge wouldn’t be anything like the one here. The jury would be asked to determine simply if Rose gambled, and if they did beyond a reasonable doubt, they’d be instructed to find Rose guilty. The jury would have the power to acquit Rose; they’d simply not be told about it.

While I, and many (although admitedly a small minority) would agree with the outcome where nullification is not an option, I hope it’s clear to the thousands of people who watched this Rose trial that taking that power from the jury would make the moot court truly moot. If you ever need an example on why nullification is a proper and arguably necessary instruction, just look to this case. If the only question is “Did Pete Rose gamble on baseball,” there’s not much to debate. (Unless you’re Bill James.) But there’s certainly a debate going on, as there should be, and if it comes out in favor of the accused, let the jury set him free.

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I Quit! Now Pay Me!

Eric Gregg’s lawsuit has been delayed yet again. Gregg, a former National League umpire, was one of 22 who (a) resigned in 1999 and (b) were shocked (shocked!) that the league actually made them stay resigned. Now he wants his severance package as if he were fired. (AP, Jul. 14; link via How Appealing).

Gregg’s case is a hysterical blend of personal responsibility — Gregg resigned out of principle, and wasn’t given his job back — and dumb luck, given his lackluster record as an ump. The story: Gregg claims that he wasn’t fired for cause: “There is no doubt that they are discriminating against me because of my weight.” (“Interview with the Umpire,” Philadephia City Paper, Aug./Sept. 1999). Ignore the fact that he resigned as part of a ploy to get MLB to choose between paying severance pay (why they’d have to pay out in cases of resignation is beyond me). But the reality is that a 1998 survey of players, coaches, and managers (run by the Players’ Association) rated Gregg as the second-to-worst ump in the NL; as Doug Pappas pointed out, “[n]o one needs statistics to conclude that the likes of Ken Kaiser and Eric Gregg don’t belong in the majors. (Pappas’ site, 1999). He was also rated one of baseball’s five worst umpires in a 1998 Baseball Weekly survery.

While his weight was made to be an issue — he was fined $5,000 in 1999 for being too fat — there could be a reason for that. It may have affected his on-field abilities. Never mind that he’d have to run into position to make a call. In 1978, Gregg bumped into a catcher trying to make a throw and called interference on himself. Almost two decades later, he was granted a leave of absence to enter a weight-loss program. (Thanks to Baseball Library for the background info.)

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Appealing to a Higher Authority

While most of the law-related praying news centered on Pat Robertson’s missives to “ask for miracles in regard to the Supreme Court” (CBS/AP, Jul.15), Deion Sanders — ex-baseballer, ex-footballer, now an NBC football analyist — allegedly did the same. Rumors had him refusing to pay more than $1,500 of a more than $4k car repair bill — the repairman claims that “[w]hen Sanders drove up, he refused to pay the invoice amount, handing Compton a $1,500 check and saying, ‘Praise Jesus … I follow what in my heart I’m told to pay.’ (ESPN/AP, Jul. 14). One reader wonders, “I don’t know how he could have won.” Answer: Prime Time apparently told the repair man up front that he’d only be forking over $1,500, so the bill best not be padded. And imagine that — the court actually enforced the contract. Perhaps it helps to be a well-known celeb. (Fort Worth Star Telegram, Jul. 14).

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Souvenir-ball wrangle

A baseball story: “Alex Popov and Patrick Hayashi scrambled in the stands for Barry Bonds’ No. 73 home run ball, fought in court over it, and walked away after its auction for $450,000 Wednesday with nothing but bittersweet memories. … A couple hundred grand for each side’s lawyers, a cut for Uncle Sam and sundry expenses. What’s left for Popov and Hayashi? ‘In the end it’s probably going to be a wash,’ Hayashi said.” (Steve Wilstein, “Bonds No. 73 ball: a story of greed”, AP/San Francisco Chronicle, Jun. 26). (& see Jul. 12: lawyer sues Popov for fees). Update Jan. 3: Hayashi’s lawyers waive part of fees.

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