Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘Cincinnati’

Judge resigns in Ky. fen-phen scandal

Last May 10 we reported on the questions that were being asked about a sealed settlement of Kentucky fen-phen claims which had included (along with vast sums in legal fees) the quiet diversion of $20 million into a mysterious new charitable entity called the Kentucky Fund for Healthy Living. Now the mystery has turned to scandal: the judge who approved the settlement, Joseph F. (“Jay”) Bamberger has resigned after allegations surfaced that he was serving as a director of the fund, receiving $5,000 a month (three of the plaintiff’s lawyers were also paid directors). The state’s Judicial Conduct Commission said Bamberger’s actions “shock the conscience” and he faced possible removal had he not resigned. Particular attention is being focused on Bamberger’s close ties to Mark Modlin, a trial consultant in the fen-phen case who has had co-investments with the judge. The alleged closeness between Bamberger and Modlin had led to protests from litigants in a number of earlier cases, including a high-profile priest-abuse case against the Catholic Diocese of Covington.

The commission’s reprimand (PDF) revealed a startling fact. “The attorney fees approved were at least $86 million and perhaps as much as $104 million” — well exceeding the $74 million that was split among the 431 claimants in settlement. A lawsuit continues on behalf of some allegedly victimized clients against four plaintiff’s lawyers involved in the settlement, including big-league Cincinnati operator Stanley Chesley. (Beth Musgrave, “Fen-phen lawsuit judge resigns”, Lexington Herald-Leader, Feb. 28; Jim Hannah, “Judge quits amid allegations”, Cincinnati Enquirer, Feb. 28; “Investigation of Bamberger warranted” (editorial), Cincinnati Enquirer, Mar. 1; “A blistering rebuke” (editorial), Cincinnati Post, Mar. 1; Peter Bronson, “Hold this judge in contempt”, Cincinnati Enquirer, Mar. 2)(cross-posted from Point of Law).

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Violent teen only 30 percent at fault for his crimes

His affluent parents bear the other 70 percent of the fault, a Cincinnati jury decided, as they awarded $10 million to victim Casey Hilmer and her family. Ben White was just 11 days short of his 18th birthday when he savagely stabbed the girl in an unprovoked assault; he was later sentenced to 10 years for attempted murder. You’d think for White’s parents to be more than twice as much at fault in the outrage as he was — 70 percent compared with 30 percent — they must be quite the monstrous couple. Curiously, though, the jury foreman said of Lance and Diane White afterward that they had “no intent” to harm and that he didn’t think they showed “ill will” or “conscious disregard for somebody”: “I’m not saying they’re bad parents”. The plaintiff’s lawyer was Stanley Chesley, who will be familiar to many of our readers. (Sharon Coolidge, “Parents must pay $7M”, Cincinnati Enquirer, Aug. 20; Tony Cook and Jeanne Houck, “Stabbed girl wins $10M judgment”, Cincinnati Post, Aug. 20).

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Inmate to be freed after 25 years

“The Ohio Parole Board has decided a Cleveland-area man has spent the last 25 years behind bars for a crime he may not have committed and voted unanimously for his release.” Gary Reece was convicted of rape in 1980 on the accusation of a neighbor despite his denials and a lack of any evidence that he had ever been in the accuser’s apartment. In the years since then much evidence has accumulated casting doubt on the credibility of his accuser, Kimberly Croft. In fact, “on one television news program, [Croft] claimed that Gary Reece actually killed her during the attack in question, but that ‘Snow White and the Seven Dwarves’ brought her back to life,'” according to a brief filed with the parole board by law students working with the Ohio Innocence Project. (Roy Wood, “UC law students convince board: Man is innocent”, Cincinnati Post, Dec. 18; “Imprisoned on a shaky story”, (editorial), Cleveland Plain Dealer, Dec. 5).

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IRS ordered to pay damages for taxpayer’s emotional distress

Now here’s a case you might think would really open the floodgates: Prof. Paul Caron of the University of Cincinnati reports at TaxProf (Sept. 17) that a court has ordered the Internal Revenue Service to pay a taxpayer $10,000 for the emotional distress occasioned by its overzealous collection techniques. The case arose in bankruptcy proceedings, however, and its relevance as precedent for solvent taxpayers is not clear. The $10,000 will be paid at the expense of other taxpayers who presumably will surrender their money in a way that involves no emotional distress for them.

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The Rule of Lawyers on radio

I’m scheduled to be a guest tomorrow morning (Tues.) at 8 a.m. EDT on Jim Blasingame’s “Small Business Advocate” nationwide radio show (more), and then at 10 a.m. EDT on Cincinnati’s WLW. And then on Wednesday from 11 to 12 a.m. EDT I’ll be the guest of Laurie Morrow on Vermont’s “True North Radio“. In each case I’ll be discussing my book “The Rule of Lawyers”, just out in paperback from St. Martin’s/Griffin (more).

If you’re a booker for a broadcast show or other news outlet, you’re aware that it’s at times like this, with books just reaching the stores, that authors and publishers are most eager to cooperate. To ask about appearances, contact Jamie Stockton at the St. Martin’s publicity department: 212-674-5151, ext. 502, or email me directly.

While we’re at it, you just know that The Rule of Lawyers would make an ideal Father’s Day gift, and Amazon (although its stocks are low) offers special shipping guaranteed to arrive by the weekend. It’s also available from Barnes & Noble, Powell’s, and (hardcover) Laissez Faire Books.

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Update: Ohio high court reverses Scott-Pontzer

The Ohio Supreme Court, following a shift in its balance through the election of two new members (see Nov. 7, 2002), has reversed its widely derided 1999 decision in Scott-Pontzer v. Liberty Mutual, which had allowed employees and their families injured on their own time in their own cars to collect from their employers’ auto insurance policies (Oct. 30, 2000; letter, Aug. 1, 2001). Some editorial reactions: Cincinnati Enquirer, Findlay Courier, Dayton Daily News.

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Lightning bolt in amusement park’s parking lot

Cincinnati attorney Drake Ebner admits cynics will think he’s suing the Kings Island amusement park — in whose parking lot his client was struck by lightning — just because it’s a deep pocket. “But they should hold the park accountable, for not telling his client and thousands of others about an impending lightning storm, Edner said Monday. ‘They could have told the people not to go to their cars, which are large metal objects that can attract lightning.'” (Kimball Perry, “Family sues Kings Island”, Cincinnati Post, Jun. 17).

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Lawyers’ advertising and solicitation generally

The following links and commentaries were written circa 1999 for Overlawyered.com.

Chapter 1 of your editor’s The Litigation Explosion (1991), unfortunately not online, tells the story of how in the 1970s the mood in elite legal circles changed: client-chasing by lawyers, long considered a serious ethical breach, began to be viewed less unfavorably as litigation itself came to be seen as socially positive rather than destructive.  The shift culminated in decisions by the U.S. Supreme Court  according Constitutional protection to most lawyer advertising and some solicitation. 

Solicitation: some extreme cases

Among cases mentioned in The Litigation Explosion are those where lawyers’ agents posed as a priest to mingle among grieving families after an air crash, and as Red Cross workers to dig out and sign up survivors after a store collapse.  (Even in today’s much-relaxed climate, these sorts of practices still expose attorneys to punishment if they can be proved.)  Ken Dornstein’s book Accidentally on Purpose reports on how personal injury operators set up a supposed religious charity, the “Friends of the Friendless”, whose real function was to secure them access to patients in the giant Los Angeles County Medical Center; “techniques included pressing an unconscious patient’s inked thumb to a legal retainer and threatening those who said no with deportation”. 

This September 1998 Cincinnati Enquirer article reports on a case where a lawyer was accused of soliciting a dead man.

Lawyer promotion on the Web: 

Client-chasing lawyers pioneered spam in the notorious 1994 “green card lawyers” episode, in which an Arizona law firm posted an ad to several thousand Usenet newsgroups offering immigration services; the fury among Netizens went on for months.  This account is by David Loundy in the Chicago Daily Law Bulletin.

Two articles still worth a look, though written at a time when web technology was in its infancy, are “Pushing the Advertising Envelope” by T.K. Reid (State Bar of Georgia) and Mark Hankins, “Ambulance Chasers on the Internet: Regulation of Attorney Web Pages” from the Spring 1996 Journal of Technology Law and Policy (U. of Fla. Law School).  Hankins writes that “the Web is unfortunately already home to undignified attorney advertising, including a DUI attorney who sponsors a ‘drunk browsing test’ inviting users to perform the tongue-in-cheek computer equivalent of a roadside sobriety test”.  (That link is gone, however.) Reid reported, “In an informal poll I did of ten attorneys owning sites on the Web, I inquired as to what steps they had taken to insure that their page complied with their State Bar’s rules for advertising. To my great surprise several responded that they did not consider their sites to constitute advertising, and therefore had done nothing. Instead of advertising their services as an attorney, they maintained that they were acting in another role – that of a publisher of free information.”

Which brings us to “Ethics Spotlight: Attorney Malpractice for Web Site Content” by Laura W. Morgan, part of the Divorce.Net site.  Morgan looks at the question whether lawyers might be liable for offering bad advice on their websites which visitors rely on to their detriment.  The general answer is no, because law-firm websites are usually well plastered with disclaimers saying, “this isn’t real advice and don’t even think of relying on it”.  Fair enough, except that the same lawyers often aren’t so willing to respect other people’s attempts to disclaim liability.

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Archived gun items, pre-July 2003

“Gun lawsuit columns“, Apr. 25-27, 2003; “Gun lawsuit preemption moves forward“, Apr. 4-6; “Gun-suit thoughts“, Mar. 31, 2003; “House bill would cut off municipal gun suits“, May 9, 2002. 

NAACP suits: “Update” (jury votes against liability), Jun. 2, 2003; “Gun lawsuit columns“, Apr. 25-27; “Gun-suit thoughts“, Mar. 31; “Stalking horse for anti-gun litigators“, Mar. 24, 2003; “NAACP’s ‘ludicrous’ anti-gun suit” (David Horowitz in Salon), Aug. 19, 1999; “Not-so-Kool omen for NAACP suit” (racial claims fail in tobacco case), Nov. 1, 1999; “Connecticut, sue thyself” (NAACP official, while state official, subsidized gunmaking), Dec. 2, 1999.  Also see letters to the editor, “NAACP lawsuits take bad aim“, Detroit Free Press, Jul. 20, 1999 (& see update Jul. 30, 2003: judge dismisses lawsuit). 

“More notices for The Rule of Lawyers” (NRA’s LaPierre praises book), Mar. 21-23, 2003 (& Apr. 25-27).

“Manufacturer sued after bullet fails to take down lion“, Apr. 25-27, 2003.

“Florida school shooting: the deep pockets did it” (Grunow), Dec. 13-15, 2002 (& update Feb. 4-5).

“Spitzer riding high” (New York attorney general), Jun. 17-18, 2002. 

Municipal cases crash and burn, 2002: “‘Gunning for manufacturers through courts’” (Boston drops its case), Apr. 29-30; “Third Circuit nixes Philly gun suits“, Jan. 28-29.  2001: “Municipal gun suits on the run” (Camden, Atlanta, Bridgeport’s Ganim), Nov. 19-20; “Victory (again) in Connecticut” (Bridgeport), Oct. 3-4 (& Dec. 11-12, 1999); “‘New York State’s Gun Suit Must Be Dismissed’“, Aug. 22-23; “Columnist-fest” (Jacob Sullum), June 22-24; “Victory in Albany” (Miami, New Orleans, etc.), April 27-29.  2000: “Victory in Philadelphia“, Dec. 22-25; “Victory in Chicago“, Sept. 20; “‘City gun suit shot down on appeal’” (Cincinnati), Aug. 16-17 (& Oct. 8, 1999).  1999: “Victory in Florida” (Miami), Dec. 14 (& Nov. 20-21). 

“‘Gunning for manufacturers through courts’” (proposed NYC ordinance), Apr. 29-30, 2002. 

Commentaries by others, 2002: “Columnist-fest” (Dave Kopel, Jacob Sullum), Mar. 18.  2001: “Municipal gun suits on the run” (Peter Schuck, Kimberley Strassel), Nov. 19-20; “Columnist-fest” (Sullum), June 22-24; “City gun suits: ‘extortion parading as law’” (Robert Levy), May 14. 2000: “Tobacco- and gun-suit reading” (Michael Krauss), Aug. 21-22; “Steady aim” (Vince Carroll, Sam Smith), May 12; “Columnist-fest” (Sullum), May 2; “Stuart Taylor, Jr., on Smith & Wesson deal“, April 11; “Blatant end-runs around the democratic process” (Robert Reich), Jan. 15-16. 1999: “Weekend reading: evergreens” (Bruce Kobayashi), Oct. 23-24; “Arbitrary confiscation, from Pskov to Pascagoula” (Michael Barone), July 24-25; “Guns, tobacco, and others to come” (Peter Huber), July 20; “‘Anti-democratic, wrong, a feel-good solution‘” (editorials), July 3. 

“Under the Christmas tree” (BB guns, toy soldiers), Dec. 21-23, 2001 (& see Feb. 11-12, 2002). 

“State of prosecution in Iowa” (bullet possession), Jan. 28-29, 2002. 

“‘FTC Taking “Seriously” Request to Probe Firearms Sites’” (unlawful to recommend guns for family security?), Jan. 16-17, 2002. 

“‘North America’s most dangerous mammal’” (deer), Nov. 29, 2001. 

“Gun controllers on the defensive“, Nov. 6, 2001. 

“‘Shooting range sued over suicide’“, Sept. 27, 2001; “$3 million verdict for selling gun used in suicide“, Sept. 17, 2001; “‘Suicide-Attempt Survivor Sues’” (department that issued cop his gun), Jan. 24-25, 2001. 

“The high cost of cultural passivity“, Sept. 21-23, 2001; “Self-defense for flight crews“, Sept. 13, 2001. 

“Self-defense: an American tradition” (Bellesiles furor), Sept. 12, 2001. 

“Navegar not nailed“, Aug. 15, 2001; “Victory in California” (Navegar), Aug. 7-8, 2001; “Weekend reading: evergreens” (Bruce Kobayashi), Oct. 23-24, 1999.

“Victory in Albany” (Hamilton v. Accu-Tek), April 27-29, 2001.

“Letter to the editor” (activist doctors vs. gun ownership), May 18, 2001. 

“Non-gun control” (toy guns; bottles and glasses), March 23-25. 

“$3 million verdict for selling gun used in suicide“, Sept. 17, 2001; “Vicarious criminal liability?” (individual who sold gun prosecuted after remote purchaser used it to commit murder), Dec. 8-10, 2000. 

“Promising areas for suits” (suits against families after firearms injuries), Dec. 7, 2000. 

“‘Gunshot wounds down almost 40 percent’“, Oct. 10, 2000. 

“For Philly, gun lawsuits just the beginning” (city intends to sue other businesses), Oct. 5, 2000. 

Effects on gunmakers: “Victory in Chicago” (dealers under pressure as liability insurance dries up), Sept. 20, 2000; “One gunmaker’s story” (Freedom Arms), June 14-15; “Gun-buying rush“, Jan. 4, 2000; “Victory in Florida” (lawyers using cost infliction as tactic), Dec. 14, 1999; “Gun jihad menaces national security” (small arms industry is important defense supplier), Nov. 9; “Skittish Colt” (not abandoning consumer market, says gunmaker), Nov. 18-19; “Proud history to end?” (Colt’s retreating from consumer handgun business), Oct. 12; Gunmaker bankruptcies: three, and counting“, Sept. 14, 1999. 

“Senator Lieberman: a sampler” (opposed firearms lawsuits in D.C. in 1992), Aug. 8-9, 2000; “Veeps ATLA could love” (Durkin, D-Ill., sponsor of gun-suit bill), July 7, 2000. 

“Our most ominous export” (U.S. trial lawyers help launch anti-gunmaker suit in Brazil), July 31, 2000. 

“‘Poll: majority disapprove of tobacco fine’” (survey finds public against gun suits 67 to 28 percent), July 24-25, 2000. 

“Giuliani’s blatant forum-shopping“, June 28, 2000; “…bad news out of New York” (city joins gun suits), June 21, 2000. 

“The Wal-Mart docket” (sued over gun sales), July 7, 2000.

Parodies, cartoons: “Animated advocacy” (“smart guns” interactive game, etc.), June 16-18, 2000; “Cartoon that made us laugh” (“….We can’t take those off the market! Dangerous products are a gold mine for the gov’t!”), Jan. 21-23; “Power tools: America’s children at risk” (parody site taken seriously), Dec. 7, 1999.

“Rewarded with the bench” (judicial nomination for Connecticut AG Richard Blumenthal?), June 12, 2000; “Punished for resistance“, March 31-April 2; “Connecticut, sue thyself” (state officials, NAACP), Dec. 2, 1999.

Smith & Wesson settlement: “Victory in Albany” (see notes), April 27-29, 2001; “A Smith & Wesson FAQ“, May 18-21, 2000; “Not with our lives you don’t“, May 9; “Columnist-fest” (Jacob Sullum), May 2; “Police resent political gun-buying influence“, April 14-16; “Stuart Taylor, Jr., on Smith & Wesson deal“, April 11; “Punished for resistance“, March 31-April 2; “Another S&W thing“, March 27; “Social engineering by lawsuit” (Yale law professor Peter Schuck doubts S&W would have lost at trial), March 27; “Smith & Wesson’s ‘voluntary’ capitulation’“, March 21; “Liberty no longer insured by Smith & Wesson“, March 20, 2000. 

“Not my fault, II” (19-year-old sues gunmaker, own father over accidental shooting 14 years earlier), May 17, 2000. 

“Not with our lives you don’t” (gun-suit issue figures in Presidential race; Clinton, trial lawyers endorse gun control event), May 9, 2000. 

Police line-of-duty: “Not with our lives you don’t“, May 9, 2000; “Police resent political gun-buying influence“, April 14-16; “Cops shoot civilian; city blames maker of victim’s gun“, April 12, 2000; “Zone of blame” (policeman’s widow sues maker of his gun), Oct. 27, 1999. 

“Barrel pointing backward” (lawsuits and “smart guns”), Feb. 17, 2000; update, March 8. 

“Improvements to our gun-litigation page“, Feb. 14, 2000; “Gun litigation roundup“, Feb. 10-11, 2000. 

HUD: “Cuomo menaces gun makers: ‘death by a thousand cuts“, Feb. 2, 2000; “Feds’ tobacco hypocrisy: Indian ‘smoke shops’“, Jan. 25, 2000; “Gun lawsuits: White House, HUD pile on“, Dec. 9, 1999. 

“Fourth Branch”?: “Steady aim“, May 12, 2000; “Judge to lawyers in Miami gun suit: you’re trying to ban ’em, right?” (anti-democratic quotes from anti-gun side), Nov. 20-21, 1999; “Gun litigation: a helpful brother-in-law” (Hugh Rodham surfaces assisting gun lawyers), Oct. 25, 1999; “Reform stirrings on public contingency fees“, Oct. 15; “Big guns” (origins of municipal litigation), Oct. 5-6; “Like calling the Orkin man to talk about bugs” (American Bar Ass’n president compares gun suits to civil rights crusade), August 10; “‘A de facto fourth branch of government‘” (Wendell Gauthier’s view of trial lawyers’ role), July 4, 1999. 

Hypocrisy of municipal plaintiffs: “Do as we say, please” (big cities suing gun makers sell lots of surplus guns themselves), July 14, 1999; “Do as we say (II): gun-suit hypocrisy in Detroit“, August 30, 1999; “Gun-suit hypocrisy, Boston style” (city admits it didn’t follow own procedures in selling guns), August 25, 1999; “Connecticut, sue thyself” (state officials, NAACP), Dec. 2, 1999. 

Philanthropies back anti-gun litigation: “Charity dollars support trial lawyers’ gun jihad“, Sept. 2, 1999; “Correction: the difference one letter makes” (YWCA, not YMCA, supports anti-gun efforts), Nov. 10; “Soros as bully” (“Open Society” philanthropist), Nov. 23, 1999. 

“Recommended reading” (Lingua Franca on Second Amendment controversy in law schools), Jan. 25, 2000; “‘Scholar’s shift in thinking angers liberals’” (Larry Tribe says Second Amd’t does include individual right), Aug. 30, 1999. 

“Fertilizer manufacturers not liable for World Trade Center bombing” (theories against them resembled those used against gunmakers), Aug. 23, 1999.

“‘Settlement bonds’: are guns next?” (Wall Street maneuvering to float bonds based on expropriation of gun industry), Aug. 5, 1999.

“Censorship via (novel) lawsuit” (lawyers suing gunmakers, Hollywood claim their theories are “traditional” and “time-honored”), Jul. 22, 1999.


Related commentary: “zero-tolerance” weapons policies

2002: “‘No scissors allowed at ribbon-cutting ceremony at Pittsburgh airport’“, Sept. 23; “Steak knives, finger ‘guns’“, May 16; “Goodbye to zero tolerance?“, Jan. 25-27. 

2001: “Under the Christmas tree” (BB guns, toy soldiers), Dec. 21-23; “John Leo on Overlawyered.com“, Aug. 15; “Bagpiper prom garb” (skean dubh knife), June 21; “Drawing pictures of weapons” (also U.K. pellet gun case), May 15; “Zero tolerance spiral” (roundup), April 12; “Non-gun control” (second-graders’ paper gun), March 23-25; “ABA criticizes zero tolerance” (knife cases), Feb. 21-22; “Pointing chicken finger“, Feb. 2-4; “Gun-shaped medallion“, Jan. 18. 

2000: “Tweety bird chain” (also African tribal knives case), Sept. 29-Oct. 1 (& update Oct. 4); “Kopel on zero-tolerance policies“, Sept. 25-26; “‘NZ kids get ‘license’ to play with toy guns’“, Sept. 8-10; “Ease up on kids” (Utah), Aug. 4-7; “Annals of zero tolerance” (finger guns, inadvertent steak knife in lunch bag), May 22; “Kindergartners’ ‘bang, you’re dead’“, April 17; “Don’t play James Bond” (fifth grader’s plastic toy gun), March 28; “Annals of zero tolerance: scissors, teacher’s beer“, March 15. 

1999: “Weekend reading: columnist-fest” (John Leo column), Dec. 11-12; “Scissors, toy-gun cases“, Dec. 8; “Annals of zero tolerance: the fateful thumb“, Nov. 20-21; “Annals of zero tolerance: more nail clippers cases“, Nov. 10; “Annals of zero tolerance: cannon shots banned” (school disallows yearbook photo posed on artillery), Oct. 30-31 (update Nov. 26-28: school relents); “Zero tolerance strikes again” (student suspended after using knife to cut cake), Oct. 23-24.

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Other resources on gun lawsuits: 

List (compiled by Prof. Eugene Volokh, UCLA Law School) of law professors skeptical of firearms suits (subcategories: municipal lawsuits, firearms torts generally). 

“Suing Gun Makers” (Reason magazine “Breaking Issues” series).

Walter Olson, “Plaintiff’s Lawyers Take Aim at Democracy“, Wall Street Journal, March 21, 2000; “Big Guns“, Reason, Oct. 1999; “Firing Squad” (federalism and gun suits), Reason, May 1999. 

National Center for Policy Analysis, “Suing Gun Manufacturers: Hazardous to Our Health“. 

American Lawyer on origins of the municipal firearms litigation, June 1999. 

American Shooting Sports Coalition, “Gun Rights: Under the Gavel“.

Guncite.com links on firearms litigation

Also see resources on product liability / on personal responsibility

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