Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘Seattle’

Pro bono as profit center, cont’d

Just so you’re totally clear on the meaning of the term pro bono when you read it from now on:

McMinimee [Seattle Public Schools attorney Shannon McMinimee] says it’s “disingenuous” for the law firm, Davis Wright Tremaine, to go after money when the firm took the case pro bono. But firm spokesman Mark Usellis said “pro bono” means their clients don’t have to pay.

“The thing that’s really important to us in a civil-rights case is that Congress specifically and explicitly wrote into the law that if the government is found to have violated citizens’ civil rights, then the prevailing party should seek fee recovery,” he said.

Most governments can argue, as Seattle Public Schools is, that they don’t have much money. But going after the fees helps deter other government bodies from violating civil rights, Usellis said….

If the firm wins, the fees likely wouldn’t be covered by the district’s insurance carrier, McMinimee said. So the money would have to come out of the district’s $490 million general-fund budget.

(Emily Heffter, “Law firm wants school district to pay $1.8M”, Seattle Times, Sept. 6).

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“Record beer consumption” at Hagens Berman cycling event

There’s nothing intrinsically droll about this report of increased jollity, mirth and conviviality at the 2006 Clif Bar/Hagens Berman Starcrossed Cyclocross race, co-sponsored by the prominent Seattle class-action firm: “The men’s main event was fast, painful, and exciting and it certainly did not disappoint the rowdy pumped up crowds who had been feasting on Pabst Blue Ribbon in the beer garden all day long.” (Cycling News, October). The only potentially humorous note is to those of us who remember Hagens Berman as having thrust itself forward a mere three years ago in the national media as the national scourge of alcohol marketing — beer marketing in particular (Mar. 29, 2004). The Milwaukee Journal-Sentinel article we cited at the time, with chapter and verse on the firm’s grandstanding against the sudsy brew, is still online.

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More on Insurance Fair Conduct

My last post commented on Washington’s Insurance Fair Conduct Act. The Act is up for public vote as Referendum 67. Check out the web sites advocating approval or rejection of the measure.

The “Approve 67” web site struck me as a bit demagogic–the main page shows a young girl clutching a teddy bear being comforted by (apparently) her father. The next shot is a man in a wheelchair, face cast sullenly downward. (Ostensibly suffering from insurance company malfeasance.) The final shot is a generic image of an emergency clinic. Then, under the “Take Action” column on your left there’s a link to “Share Your Insurance Horror Story.” (As of this writing there is a grand total of three “horror” stories.)

Under the endorsements tab, trial lawyers are notably absent–at least from the list. There are, however, multiple labor organizations as well as the Washington State Democratic Party. Under the “About Referendum 67” tab [with my comment]:

If an insurance company unfairly denies a legitimate claim, your only recourse is to sue. But if you win, the only thing they have to pay is the amount of the original claim [not true, just ask millionaire prankster dentist Robert Woo.] Referendum 67 creates an incentive [there already are incentives: coverage by waiver or estoppel, Olympic Steamship attorney fees and the Washington Consumer Protection Act (CPA)] to treat legitimate claims fairly by allowing the court to assess penalties if an insurance company illegally denies or delays payment of a legitimate claim.

Referendum 67 would help to ensure that the insurance industry honor their commitments to treat all policyholders honestly by making it against the law [it’s already against the law, silly–see the existing RCW and WAC] to unreasonably delay or deny legitimate claims.

The News Tribune in its story Let’s not try to fix an insurance industry that’s not broken says:

That the system is working well is illustrated by a storm of a different sort: the windstorm that smashed into Western Washington earlier this year. Within less than four months of the event, according to a recent study, 90 percent of the 42,000 claims were settled, for $170 million in compensation. Most of the remaining claims remained unsettled due to lack of qualified contractors or the time needed to rebuild homes. Only three complaints were filed with the insurance commissioner’s office.

I don’t know if I would characterize this legislation as a jackpot for trial lawyers, but it’s probably unnecessary and will increase the frequency of litigated first party claims at the greater expense of the insurance paying public. It’s up to Washington voters to get it right.

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Jackpot Justice or Insurance Fair Conduct?

The Washington Legislature recently passed and governor signed the “Insurance Fair Conduct Act” allowing first party claimants to recover treble (triple) damages and attorney fees for claims unreasonably denied. The Seattle Post Intelligencer’s story here lays out the pending battle between insurers and the trial bar. You see, the legislation is up for public vote in November and each side is scurrying to curry favor with the electorate.

Now, as an insurance consumer myself I expect high marks from my insurance company in the event of a loss. And, I have from time to time witnessed the recalcitrance of other insurers when tendering defense and indemnity to them (particularly in additional insured scenarios.) Few would disagree that insurers should promptly and cheerfully pay those claims they owe, period.

Read On…

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New Guest Blogger / Court’s ruling bites

Greetings! Thanks to Walter Olson for allowing me the opportunity to guest blog this week at Overlawyered. I am Jason Barney and have worked for self-insured corporations as a claims investigator, a mid-sized northwest-based insurer investigating casualty and property claims, and now a large, self-insured northwest municipality as a tort claims investigator. All told, I have nearly ten years of claims and litigation management experience.

First things first: I have significant and genuine respect for attorneys and other legal professionals. I don’t take this blog as an opportunity to bash lawyers, but to “[Chronicle] the high cost of our legal system.” And, as it turns out there is a lot of that to be had.

One story that recently caught my eye and has been covered in these pages of late is a Washington Supreme Court ruling that reversed an appeals court ruling in favor of a dentist’s insurer for refusing to defend him for a practical joke gone wrong. The court’s ruling was recently criticized by The Seattle Times here and the insured’s counsel responded via letter to the editor here (scroll down to fifth letter – “The justices get it”.)

Read On…

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Yet another McDonald’s coffee style lawsuit

You will recall that defenders of the absurd McDonald’s coffee lawsuit insist that the suit was justified because only McDonald’s sold beverages capable of third-degree burns. We’ve repeatedly shown that that claim is fictional, but add one more example: a New Jersey man is suing Starbucks for selling “unsafe” hot tea that caused third degree burns on his hand when he spilled it on himself (though at least, unlike Stella Liebeck, he is claiming that the spill is the store’s fault for failing to attach the lid properly). Because Starbucks does not comment on litigation, they surrender the entire article to the plaintiffs’ attorney for Antonio Couso to use as a platform when the reporter does not bother double-checking any of the lawyer’s claims. (John Petrick, “Starbucks sued over spilled tea”, The Record, Jul. 27).

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July 27 roundup

  • Grand jury declines to indict Dr. Anna Pou in Katrina hospital deaths, despite heavy breathing from Louisiana AG Charles Foti and TV’s Nancy Grace [Times-Picayune, more; 2005 CNN transcript; Health Care Blog, GruntDoc, Vatul.net]

  • Protection from lawsuits for “John Doe” security informants is back in anti-terror legislation moving through Congress, despite back-door effort to eliminate it earlier [Fox News, Malkin; earlier] Addendum: but it’s in altered, much-weakened form, says commenter Bob Smith;

  • U.K.: Top law firm Freshfields earns millions advising clients on employment compliance, yet “omitted to check that changes to its own pension scheme were legal” [Times Online]

  • Thinking of doing some guestblogging, for us or another site? Some good advice here [Darren Rowse via Kevin O’Keefe]

  • Even Conrad Black can have trouble affording lawyers, at least with feds freezing his accounts [PoL on Steyn]

  • Shouldn’t have let us become parents again: Florida jury awards $21 million in “wrongful birth” case [Fox News]

  • Possibility of gigantic reparations claims adds intensity to big lobbying fight in Washington over whether Turkey’s slaughter of Armenians in 1915 amounted to genocide [Crowley, New Republic]

  • Updating colorful coverage case (Jun. 22, 2005): dentist wins $750K verdict on insurer’s duty to defend him for taking gag photos of sedated employee with boar tusks in mouth [Seattle Times, more; dissent in PDF; Althouse]

  • Giuliani might use federalism to defuse culture wars [Brownstein, L.A. Times; disclaimer]

  • Virginia’s enactment of harsh traffic fines (Jul. 6) follows tryouts of the idea in Michigan and New Jersey, where effects included rise in unlicensed driving [Washington Post]

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July 6 roundup

  • How to handle illegal alien’s slip-fall suit against supermarket? With some delicacy: jury told only that plaintiff “couldn’t legally work in this country” [Oroville, Calif., Mercury-Register]

  • Sorry, docs: “I hate doctors” beats out “I hate lawyers” as a Google search result [Bioethics Discussion Blog via KevinMD]

  • Virginia adopts harrowingly punitive schedule of traffic fines. Its sponsor: lawmaker whose day job is defending motorists [Washington Post; NRO “The Corner”; Ribstein; our earlier report]

  • A businessman in London is suing Google for “publishing” (by indexing) allegedly defamatory material, and, boy, will the Internet ever be a different place if he wins [Independent (U.K.), Volokh]

  • Federal indictment charges Houston injury lawyer secretly paid $3 million to two Hartford Insurance claims adjusters in connection with $34 million in silicosis settlements [PoL]

  • Mississippi high court rules invalid former AG Mike Moore’s slush-fund diversion of $20 million/year in tobacco settlement money to evade legislative oversight [Sun-Herald, Bader; also this PoL roundup]

  • More RIAA-suit horrors, this time from Washington state [Seattle P-I] Prospects for a counterattack? [Pasquale, Concurring Opinions]

  • California Assembly votes to require pet owners to sterilize mixed-breed dogs and cats, while UK animal rights authority mulls rights for invertebrates [Mangu-Ward and Bailey, Reason]

  • Here come the tainted-Chinese-export suits, with many American defendants on the hook [Parloff, Fortune] Plus: car with the “E COLI” license plate may be driving lawyer to work [WSJ Law Blog]

  • Gimme those antiquities: Peru vs. Yale on Machu Picchu relics [Zincavage]

  • Dick Schaap med-mal case evokes shifting theories from celebrated lawyer Tom Moore [two years ago at Overlawyered]

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Updates – June 20

Updating a few earlier stories we’ve discussed here…

  • Two weeks ago we noted that a new online attorney rating site, Avvo.com, was being threatened with a lawsuit by John Henry Browne, a disgruntled Seattle criminal defense attorney. (Jun. 10). Well, whatever the merits or weaknesses of Browne as an attorney, one thing you can say about him is that he doesn’t make idle threats; last week, he filed suit against Avvo. The suit, designated a class action, contends that Avvo’s ratings are flawed. From all accounts, that’s almost certainly true, but as I mentioned in my previous post, it’s not clear that this presents a valid cause of action; Avvo is entitled to rank lawyers differently than John Henry Browne wants them to. In an attempt to get around this problem, the complaint trots out various “consumer protection” arguments using notoriously vague and broad statutes that don’t require that the plaintiffs identify any consumers who have been harmed. (Illustrating perfectly the phenomenon Ted discussed on Jun. 18).

    Oh yes, and Browne also claims in the complaint that “at least two clients” of his fired him (in less than a week!) because of his “average” rating on Avvo. Let’s just say I’m rather skeptical of Mr. Browne’s ability to prove such a claim.

    The law firm handling this class action case? Overlawyered multiple repeat offender Hagens Berman. (Many links.)

  • Remember that lawsuit where Illinois Chief Justice Robert Thomas sued the Kane County Chronicle for defamation? (Apr. 2, Nov. 2006) Well, when last we heard, the libel award — originally an absurd $7 million — had been reduced to $4 million by the trial judge. Not surprisingly, the Chronicle still is unsatisfied, and does not feel it can get a fair shake from the very Illinois court system headed by Thomas; it has now filed a federal lawsuit claiming its constitutional rights have been violated. Named in the suit are Thomas, the trial judge who heard the case, and the rest of Thomas’s colleagues on the state Supreme Court.
  • Kellogg’s bows to threats of frivolous litigation coming from the Center for “Science” in the “Public Interest”; agrees to limit advertising of its cereals to children.

    Of course, this is portrayed as an issue of advertising, but as Michael Jacobson of CSPI admits, this litigation strategy is simply an attempt to drive products he disapproves of from the market. And now that Kellogg’s has capitulated, certain politicians are trying to force other companies to do the same.

    Originally: Jan. 2006.

  • We had previously reported (May 17) that the unfair competition lawsuit between Equal and Splenda had settled. Turns out that the two sides are still fighting, with each side accusing the other of reneging on the deal. (LI)

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Suing emailers for a living

If you’re going to try to make a regular income out of suing commercial emailers alleging violations of the anti-spam laws, you may wish to be careful about your methods. Last month a federal court “threw out anti-spammer and self-proclaimed serial litigator James S. Gordon’s lawsuit against e-mail marketer Virtumundo. … Just as significantly, the judge also ruled the defendants can recover attorney fees.” Judge John Coughenour of the Western District of Washington ruled that that headers and “from” lines on the emails in question were not unlawfully deceptive, as Gordon had argued; Gordon had sought more than $2.3 million in damages over tens of thousands of Virtumundo emails. (Ken Magill, “Judge Tosses Anti-Spam Suit Against Virtumundo”, DirectMag, May 15; Venkat Balasubramani, “Can-Spam put to the test”, News.com, May 22). According to Ken Magill of DirectMag:

Gordon opted in to receive the e-mails and failed to use the opt-out mechanisms supplied in the subsequent messages, according to court records.

Also, during the trial it came out that Gordon’s sole source of income is from commercial e-mail disputes and that he’s cutting his friends in on the gig….

Gordon has testified that in 2006 he received no income that was not the result of a settlement of a dispute. . …He also admitted that his “clients” — apparently people to whom he provides e-mail accounts — supply him with e-mails they deem are spam for him to use in his disputes and that they get an unspecified percentage of the settlements.

(“Man, Oh Man, What a Racket”, May 22).

Also last month, a different federal court (Central District of California) resolved another CAN-SPAM case in a manner favorable to the defendant, Vonage; the court ruled that the emails sent by Vonage were probably not illegal under California law and that in any case such law would be pre-empted by the federal spam statute. Representing the plaintiffs: Seattle class-action firm and frequent Overlawyered mentionee Hagens Berman. (“The Tide Continues: Court Shoots Down Spam Class Action”, SpamNotes, May 28). Earlier on CAN-SPAM and California anti-spam law here.

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