Overlawyered

Impersonating a tribe

Ronald A. Roberts of Granville, N.Y., who has called himself Sachem Golden Eagle of the Western Mohegans, awaits sentencing June 17 after pleading guilty to federal charges of perjury and submitting false documents in proceedings asking for recognition as an Indian tribe. Last year Mr. Roberts "sued New York State, seeking millions in rent over the last 200 years on 900,000 acres of public land throughout the Hudson Valley, including land around the Capitol. In another suit, in 1999 he had tried to stop the development of a state park on Schodack Island in the Hudson River near Albany, asserting that it was the ancestral burial grounds of his people. Judges eventually threw out both suits." According to prosecutors, Roberts advanced his claims to represent a surviving Indian tribe by submitting "an altered death certificate for his grandfather, Arthur E. Smith, on which the cursive 'W' for white on the form had been changed to 'Indian.' But prosecutors pointed out that it was not much of a forgery, since the clumsy alteration was made with a ballpoint pen, invented after the grandfather's death." Roberts "also gave the federal government a doctored version of the 1845 census of Indians in New York, in which someone had conveniently inserted his great-grandfather's name into a list of Indian household heads." (James C. McKinley Jr., "Man With Flair for Reinventing Himself Goes a Step Too Far", New York Times, Jun. 3; Hallie Arnold, "Ex-leader admits lying on tribal application", Kingston Daily Freeman, Feb. 10). For more on the curious, high-stakes legal world of tribal recognition, casinos and land claims, see May 17, Feb. 9 and links from there.

Update: "Ten Commandments" slate

In Alabama's GOP primary Tuesday, where a slate of religious-right judicial candidates backed by former chief justice Roy Moore was financially supported by the state's leading plaintiff's lawyers (see Jun. 1), Moore loyalist Tom Parker succeeded in knocking off business-favored incumbent Jean Brown by a narrow margin; a second "Ten Commandments" candidate lost outright, while a third trailed badly in voting but may have succeeded in forcing a runoff. (William C. Singleton III, "Roy Moore's clout swings high court race", Birmingham Post-Herald, Jun. 2). Mike DeBow of Southern Appeal (Jun. 2) has more, and notes that the Democrat who will be facing off against Mooreite Parker in November, Robert Smith of Mobile, is -- unusually for a Democratic candidate in that state, it would seem -- a defense- rather than a plaintiff's-side litigator and indeed a member of the International Association of Defense Counsel.

Oz: jilted wife wants stress damages too

Two months ago (see Apr. 8) a workers' comp tribunal caused a furor in Australia by awarding $A28,000 to teacher Jeff Sinclair, who was fired over an affair with a teenage student. ("School for scandal", Melbourne Age, May 3). Now Sabina Sinclair, the educator's spurned wife, is also seeking compensation for psychological injury from the New South Wales education department over the incident. "I am really fragile," she said. (Martin Wallace, "Jilted wife seeks damages", Daily Telegraph/News.com.au, May 31).

Jackpot in San Diego

Drivers of the Ford Explorer have a lower fatality rate than drivers of other vehicles -- and a lower fatality rate from rollovers than drivers of other SUVs. The NHTSA found that there was nothing wrong with the Explorer's design after a spate of well-publicized accidents resulted in an investigation. Nevertheless, plaintiffs persist in filing lawsuits accusing the Explorer of being unreasonably dangerous. And one can see why: Ford has successfully defended the vehicle in at least ten consecutive jury cases, but on Wednesday a San Diego jury rewarded the latest roll of the dice with a $122.6 million verdict for a paraplegic plaintiff, Benetta Buell-Wilson. Ms. Buell-Wilson was driving at a high speed on Interstate 8, when the RV in front of her lost a large piece of metal; she lost control of the SUV when she swerved, and the vehicle went off the highway and flipped 4 times before landing on the roof. The jury returns today to deliberate the question of punitive damages. (Ray Huard, "$123 million awarded in SUV rollover", San Diego Union-Tribune, Jun. 3; Myron Levin, "Jury Orders Ford to Pay $122.6 Million", LA Times, Jun. 3) (via Bashman). "This was an extremely severe crash, and any SUV would have reacted in the same way under similar circumstances," Ford spokeswoman Kathleen Vokes said. "Our concern goes out to Ms. Buell-Wilson and her family, but this tragic accident was caused by a combination of high speed and a large metal obstruction in the road." ("Verdict ends Ford streak", Detroit News, Jun. 3). Ford says it will appeal; the jury awarded four times more than what plaintiffs asked for.

As with all my posts, I speak for myself and not my firm or any of my firm's clients (which include Ford).

Autopsy finds mouse died of skull fracture

...undercutting plausibility of claim that it got into the soup by mistake. The "incident caused Cracker Barrel to stop serving vegetable soup at all of its 497 stores nationwide. ... [A spokeswoman for the company] said the Pattersons had demanded $500,000 from the company" but now they've been arrested instead. (Peter Dujardin, "Tests reveal mouse-in-soup hoax; pair charged", Newport News (Va.) Daily Press, Jun. 2)(via Legal Reader). See also Jan. 25-27, 2002.

Asbestos bankruptcy shenanigans

In 1994 "Congress fiddled with the bankruptcy code in a way that allowed trial lawyers to exploit asbestos bankruptcies. It works like this: In a normal bankruptcy, a creditor's voting weight is mainly determined by how much he's owed. But thanks to the 1994 change, all asbestos 'creditors' (claimants) are treated equally." A dying cancer patient gets the same vote as someone with no detectible health impairment at all. "It didn't take long for tort lawyers to figure out how to game this system. The leading asbestos law firms team up and pool their unimpaired plaintiffs (who each get a vote), draw up a plan that gives the bulk of the money to their clients, and then outvote the other creditors." Once in control, the lawyers can begin in effect running the affairs of the company in ways that provide them with further benefits, including cutting themselves large fees for their administrative and dealmaking services. ("The latest asbestos scam" (editorial), WSJ, Jun. 1)($$) See also Mar. 15-16, 2003.

4,000 federal crimes

A new study for the Federalist Society finds that the U.S. Code now defines well over 4,000 crimes, and that the count has risen by more than a third since the early 1980s. A substantial share of the newer offenses, around a third, are environmental in nature, and the rate of enactment of federal criminal statutes spikes in election years, finds the author, Prof. John S. Baker, Jr. of Louisiana State University Law Center. Moreover, the trend is toward a chipping away of the traditional requirement for a mens rea -- that is, a guilty or otherwise knowing state of mind -- in favor of the criminalization of what may be inadvertent regulatory infractions. ("Measuring the Explosive Growth of Federal Crime Legislation", study in PDF format/supplementary reading).

Schwarzenegger punitive damage plan

My op-ed on the subject appears in today's Wall Street Journal. (Walter Olson, "More Punitives to the People!", Jun. 2)($$). The California governor's proposal to have the state take 75 percent of punitive awards has gotten a more favorable reception from the left/liberal side of the blogosphere than some might have expected; see Nathan Newman (calling it "the right idea")(May 17), Atrios ("not a bad idea") May 17, plaintiff's attorney Dwight Meredith (more)("I have no major objection to having a portion of punitive damages go to the state.")(May 26)(and see Jun. 1 on the governor's fanciful revenue scoring), and Kevin Drum ("probably a good idea") May 29.

See also Adam Liptak, "Schwarzenegger Sees Money for State in Punitive Damages", New York Times, May 30. More editorial and commentary links: Dan Walters, "Arnold enters battle over tort reform", Sacramento Bee/Alameda Times-Star, May 29; "Sensible concept, suspicious numbers" (editorial), San Jose Mercury News, May 25 (reg); Phil Yost, "Governor's budget counts on windfall that won't arrive", San Jose Mercury News, May 30 (reg); "A lawyer joke" (editorial), San Francisco Chronicle, May 27; George Skelton, "Proposal to Tap Punitive Damage Awards Has Many Agendas", Los Angeles Times, May 24; "State profit in punishment" (editorial), Los Angeles Times, May 24. Further: Martin Grace has some more information about collections under the Georgia "split-award" statute (Jun. 2), and Paul Caron at TaxProfBlog discussed the proposal May 20.

Test tube dominoes

Stem cell research may be what's under attack right now, but the logical next target is in vitro fertilization. (Michael Kinsley, "The False Controversy of Stem Cells", Time, May 31).

Fingerprint evidence

Not quite the infallible science it seemed, as many were beginning to grasp even before the fiasco of the Brandon Mayfield case. (Jennifer L. Mnookin (University of Virginia Law School), "The Achilles' Heel of Fingerprints", Washington Post, May 29). More: David Feige, "Printing problems", Slate, May 27.

NYC lead-paint law begins wreaking havoc

Exactly as predicted (see Dec. 15, Feb. 13): "Two months before it goes into effect on Aug. 2, the city's new lead-paint legislation has caused nonprofit groups and private developers to shelve plans to redevelop buildings for low- and moderate-income tenants. ... Frank Anelante, president of Lemle & Wolf, a developer and manager of lower-income apartments, primarily in the Bronx, said he had halted the rehabilitation of two five-story walk-ups in upper Manhattan because the procedures required by the law made apartment reconstruction impractical." According to John M. McCarthy, executive vice president of the Community Preservation Corporation, the largest provider of mortgages for the city's older midsize apartment buildings, the new law "leaves owners extremely vulnerable to damages in a lawsuit. We can't provide mortgages under those circumstances unless the owner is able to get insurance at a reasonable cost." (Alan S. Oser, "Lead-Paint Law Frustrates Plans for Low-Income Housing", New York Times, May 28).

Plagiarist to sue university

Michael Gunn admits that he's guilty of plagiarism, but he's suing the University of Kent at Canterbury because, he says, they should have caught him sooner and warned him before they did catch him on the eve of graduation. (BBC, May 27) (via Jacobs).

Papa John's Suit

Michael Harris, a 19-year-old delivering pizzas for Papa John's, gossiped with a manager that his supervisor, Robert Shields, was sleeping with an employee. Shields found out, and he and Harris decided to resolve their differences by agreeing that Shields would punch Harris in the chest. Unfortunately, the punch caused cardiac arrhythmia and killed Harris. Harris's family sued Papa John's, and the Iowa Supreme Court ruled May 12 that a jury would need to decide if the punch was an "adverse employment action" entitling the family to damages from the employer, or a private matter.

Publication day

Today is official publication day for the paperback edition of my book The Rule of Lawyers: How the New Litigation Elite Threatens America's Rule of Law, which came out in hardcover last year. (Amazon is still listing it as forthcoming, but I've seen advance copies and shipments should be arriving at stores.) If you've only read the hardcover version, you're missing the newly written Afterword in which I talk about the fast-food litigation, Texas's comprehensive lawsuit reform, and many other recent topics. C'mon, order your copy today -- or better yet, a bunch of copies to distribute to readers who need to catch up on this topic.

Ala.: trial lawyers bankroll "Ten Commandments" backers

Seven leading plaintiff's law firms, which ordinarily donate to Democrats, have made themselves the leading backers of a so-called "Ten Commandments slate" of candidates for the Alabama Supreme Court backed by ousted Chief Justice Roy Moore, a hero to some on the religious right. Firms including Beasley, Allen of Montgomery; Cunningham, Bounds of Mobile; and Hare, Wynn, Newell and Newton of Birmingham have (through PACs) contributed 98 percent of the funding of Republican candidates Pam Baschab and Jerry Stokes, and about 44 percent of the support for Tom Parker. All three are running in the GOP primary against business-backed candidates. (Kyle Wingfield, "Parker, Baschab, Stokes get nearly $1 million from trial lawyers", AP/AlabamaLive, May 28; Stan Bailey, "Brown spends over $1 million on race", Birmingham News/AlabamaLive, May 28; Shaila K. Dewan, "The Big Name in Alabama's Primary Isn't on the Ballot", New York Times, May 30). Update Jun. 4: one of the Moore-backed candidates wins.

One gateway latte, hold the sugar

"If you're not alarmed by this situation [the availability of temptingly dessert-like coffee drinks at Starbucks] because you think coffee is no big deal, you must not be aware of the fact that the Center on Addiction and Substance Abuse has identified caffeine as a gateway drug. Last year it reported that 'girls and young women who drink coffee are significantly likelier than girls and young women who do not to be smokers...and drink alcohol.'" (Jacob Sullum, "Bad Taste", syndicated/Reason Online, May 28; Reason "Hit and Run", May 24).

Blue-ribbon excuses: post-traumatic slavery syndrome

By reader acclaim, from Oregon: "A Portland lawyer says suffering by African Americans at the hands of slave owners is to blame in the death of a 2-year-old Beaverton boy. Randall Vogt is offering the untested theory, called post traumatic slave syndrome, in his defense of Isaac Cortez Bynum, who is charged with murder by abuse in the June 30 death of his son, Ryshawn Lamar Bynum. Vogt says he will argue -- 'in a general way' -- that masters beat slaves, so Bynum was justified in beating his son." However, attorney Vogt may find it a challenge to secure the admissibility of the slavery-trauma theory, which has been accepted by neither the courts nor the psychiatric profession. Washington County Circuit Judge Nancy W. Campbell threw out pretrial testimony by Joy DeGruy-Leary, an assistant professor in the Portland State University Graduate School of Social Work, to the effect that the brutality of slavery, together with continuing racism, oppression and societal inequality, helps explain self-destructive, violent or aggressive behavior in African-Americans. Judge Campbell said she would reconsider allowing the defense in Bynum's September trial, but only "if his lawyer can show the slave theory is an accepted mental disorder with a valid scientific basis and specifically applies to this case." (Holly Danks, "Judge rejects slave trauma as defense for killing", The Oregonian, May 31). According to David Bernstein, writing two years ago, the standards for admission of expert testimony in Oregon are not as tight as might be wished ("Disinterested in Daubert: State Courts Lag Behind In Opposing 'Junk' Science", Washington Legal Foundation (PDF) Legal Opinion Letter, Jun. 21, 2002)(search on "Oregon" or scroll to near end of piece).

Virginia primitive, round 5

Ramesh Ponnuru of National Review Online ("The Corner", May 18) has written in defense of the new Virginia statute, much criticized in this space, which declares null and void within the state not only civil unions but also any "partnership contract or other arrangement between persons of the same sex purporting to bestow the privileges or obligations of marriage" (Mar. 19, Apr. 18, Apr. 23, May 12). As I noted two weeks ago, given the unclarity of the law's drafting, a prolonged guessing game about its meaning may be inevitable; but some guesses are more plausible than others.

Australia: "Personal injury claims plummet"

Yes, it can happen: following the enactment of sweeping state-level liability reforms, the rate of personal-injury filings in Australia is way down and legal practices are closing or shrinking as business declines. In the state of Victoria, claims over public liability, assault, dog bites, slip-falls and school accidents have dropped sharply and a total of 19 medical negligence claims were filed in the six months to April 29, down from "hundreds of claims two years before". (Fergus Shiel, Melbourne Age, May 11). In the state of New South Wales, which includes Sydney, "The court's Chief Judge, Reg Blanch, said statements of claim had fallen from a record 20,784 in 2001 to just under 8000 last year. ...There are now only minor delays in bringing on a civil case, with the exception of motor vehicle claims, which require more documentation." (Michael Pelly, "Lawyers in job void as claims drop", Sydney Morning Herald, May 8). For more on the excesses which led to a public re-examination of "compensation culture" Down Under, see our Australia page.