"A federal appeals court has revived an abuse of process suit against a law firm and lawyer that allegedly used unfair tactics in litigation -- including hiding documents, obstructing discovery and fabricating privilege claims -- after finding that a lower court improperly determined that such conduct was immune from suit under the doctrine of judicial privilege." A Philadelphia judge had found that insurer Fireman's Fund and its Washington, D.C.-based law firm, Gilberg & Kiernan, had committed extensive misconduct in defending asbestos coverage claims brought by policyholder General Refractories Corp. GRC proceeded to file an abuse of process action against the insurer and its law firm, but a federal judge ruled that lawyers enjoy near-absolute immunity from abuse of process claims when engaged in litigation, under a privilege for "judicial communications". Not so, said an appeals court, which construed the privilege more narrowly and reinstated the suit: it would frustrate the purpose of rules against abuse of process to let lawyers exempt themselves so sweepingly from liability for such abuse. (Shannon P. Duffy, "Suit Over Litigation Tactics Revived", The Legal Intelligencer, Jul. 30)(via Legal Reader).
Administrators of upstate New York cities are complaining that the cost of litigation saps their budgets: Rochester paid out $443,000 in 2002, while Buffalo writes between $700,000 and $900,000 worth of settlement checks a year. But maybe they should count their blessings: "Last year, despite its massive deficit, New York City paid out $525 million." (Rick Armon, "More citizens taking governments to court", Rochester Democrat & Chronicle, Jul. 28). The figures represent a municipal budgetary burden of about $2 for each of Rochester's 219,000 residents, perhaps closer to $3 if some share of the $253,000 in outlays for surrounding Monroe County is ascribed to the city. The comparable figure for New York City (in which city and county government are merged) is $65 per resident or $260 for a family of four.
Daniel Gross reports on a doughty band of tax protesters who insist that they are not actually obliged by law to engage in payroll tax withholding, and quotes our editor as describing this position as arising from "folk law", in the form of legal claims that "bubbled up without any encouragement from the legal profession." ("America's Oddest Tax Dodge - Can Section 861 of the Internal Revenue Code save you from income taxes?", Slate/MSNBC, Jul. 30).
On Monday NBC News ran a supposed "in-depth report" on the gun-suit preemption bill now pending in Congress (no transcript online), essentially parroting the arguments of the bill's critics. Blogger Alphecca provides a concise critique (Jul. 28). See Apr. 4-6, Apr. 25-27. J.R. Labbe of the Fort Worth Star-Telegram scoffs at the rather desperate efforts of some gun-litigation backers to spin Judge Weinstein's dismissal of the NAACP lawsuit as somehow a victory for them ("Gun debate lacks common sense", Tallahassee Democrat, Jul. 30). The National Association of Manufacturers warned this March that the precedents being sought by anti-gun litigators, "if widely applied, could result in bankruptcies for countless manufacturers of lawful products ... 'Today it’s handguns, but tomorrow it could be power tools, golf clubs or automobiles,' said NAM Vice President for Litigation Quentin Riegel." (NAM press release, Mar. 26). See also Dave Kopel, "Ban lawsuits that hurt legal gun industry", Philadelphia Inquirer, May 19 ("At an American Bar Association symposium in 1999, one of the plaintiffs' attorneys for the antigun lawsuits explained that the attorneys had read the Dun & Bradstreet reports on the firearms companies, estimated how much the companies could spend defending themselves against litigation, and then filed so many cases in so many jurisdictions that the gun companies would not be able to spend the money to see the cases through to a verdict.")
On May 23 a 12-person jury unanimously rejected a price-fixing suit brought against ten American and Japanese seafood companies over prices paid to fisherman in Alaska's Bristol Bay. By that point, however, other defendants had paid $40 million to settle out of the case. But fishermen shouldn't expect to see much of that $40 million: their lawyers want $16.5 million as their contingency share, while the defendants who prevailed at trial want at least $11 million to pay their lawyers (Alaska, unlike the 49 other American states, follows a modified loser-pays system, though it seems the state legislature passed a special bill to clarify its application in this case). "Jack Keane, a veteran Bristol Bay fisherman who lives in Anchorage, said he's not surprised the lawyers might take much of the money. 'The cynics kind of said, "Well, that's the way it would go anyways,"' he said. 'God, it's a messy legal thing.' ... The leading commercial fishing trade group, United Fishermen of Alaska, has said it doesn't support an appeal and hopes the seafood companies recoup their legal expenses to plow back into an industry they say suffered major damage from the lawsuit in the key salmon market of Japan." (Wesley Loy, "Lawyers on both sides of salmon case want to get paid", Anchorage Daily News, Jul. 30).(& see updates Dec. 14, Feb. 22).
Upholding an advisory jury's verdict in favor of the firearms industry, federal judge Jack Weinstein has dismissed the NAACP's public nuisance lawsuit against 68 gun manufacturers and distributors, discussed earlier in this space. The National Association for the Advancement of Colored People had asked the court to declare the manufacturers and distributors liable for creating a public nuisance under New York law. Rather than monetary damages, the NAACP sought "sweeping restrictions on buyers and sellers of handguns." (Tom Hays, "Judge Dismisses NAACP Gun Lawsuit," Assoc. Press, July 21, 2003). Judge Weinstein said that "while the NAACP's evidence showed some gun retailers were careless in allowing a large number of handguns to enter the illegal market, the group did not prove its members suffered unique harm." ("Court dismisses NAACP gun suit," Reuters, July 21, 2003). His 175-page opinion is available here.
Judge Weinstein's ruling follows by a month a Manhattan appellate court's decision affirming the dismissal of state Attorney General Eliot Spitzer's lawsuit against gun manufacturers, also brought on public nuisance grounds.
More on the legal push across the country to reclassify humans as "guardians" rather than mere owners of pets, and the related-but-different push to expose veterinarians to sky's-the-limit liability for the emotional significance of Fluffy and Snowball, rather than just the token damages that would be agreed to in virtually any imaginable contractual agreement they might reach with their paying human customers. (For earlier items, see Jan. 30-31, 2002, Feb. 12, 2003, and our animal-rights coverage generally (pre-6/03)). ("Malpractice Cases Spike ... for Pets", Christian Science Monitor/ABCNews.com, Jul. 29). Reader Sam Gaines comments: "I am deeply involved in the animal welfare/rescue movement here locally, but I see grave danger in this move -- the potential for worse, not better, conditions for abandoned animals based on such initiatives is tremendous. Just as laws requiring fees for unneutered pets generally backfire into even more homeless animals than before, this feel-good meddling will simply drive vet costs further off the scale, and the animals will ultimately suffer."
"Francine Parrington lost her arm when she crashed into a tree while driving with a blood alcohol level of 0.118 but says it wasn't her fault and is suing the hotel for serving her too many drinks. ... She crashed into exactly the same tree a year before and claims her drinking habits were caused by her marital difficulties with a straying husband." (Angela Kamper, "Drink-driver sues the hotel", Jul. 30)). They do seem to get a lot of these cases down in Oz, don't they? See, for example, the cases described in this space May 12. (Update Dec. 21: she loses case)
P.S. In Oslo, Norway, a court has just thrown out a man's conviction on charges of drunken driving on the grounds that he had been much too drunk at the time to give proper consent for the police to interrogate him; the resulting confession had provided the basis for the conviction ("Drunk driver acquitted for drunkenness", Aftenposten, Jul. 30)(via James Taranto's Best of the Web, OpinionJournal, Jul. 30).
Congress's General Accounting Office confirms what the Department of Health and Human Services and Joint Economic Committee (PDF) have found before it: "Increases in medical malpractice insurance rates in some states, including Pennsylvania, were due largely to high payoffs on legal claims, according to a congressional survey released yesterday. ...'Losses on medical malpractice claims appear to be the primary driver of increased premium rates in the long term,' the report states. 'Such losses are by far the largest component of insurer costs.'" (Lara Jakes Jordan, "Malpractice insurance rise tied to legal claims", AP/Pittsburgh Post-Gazette, Jul. 29). Study: "Medical Malpractice Insurance: Multiple Factors Have Contributed to Increased Premium Rates", Jun. (PDF format).
In the latest example of "regulation through litigation," a New Orleans jury decided Monday in a class action case that tobacco companies should pay for stop-smoking programs for healthy Louisiana smokers -- even though the jury also decided that cigarettes are not a defective product. The jury did, however, "reject[] a claim that the companies should finance medical tests for up to 1.5 million current and former smokers, saying free checkups for smokers who show no signs of disease aren't necessary." ("Jurors give split tobacco verdict," The (N.O.) Times-Picayune, July 29; "Medical Monitoring," National Public Radio, July 29).
Hi. I'm Leah Lorber, and I'll be your guest blogger for the next week. I'm a lawyer working on civil justice policy at a Washington, D.C. law firm, where I'm also co-counsel to the American Tort Reform Association. (Obligatory disclaimer: any opinions I post are my own and may or may not be shared by ATRA, although I'd be really surprised if there are any major discrepancies.) I'm also a former newspaper reporter, and I'm looking forward to seeing if writing legal briefs has forever ruined my ability to write sentences of 25 words or less. That said, I'll begin. Thanks to Walter Olson for having me here.
Justice Peter Young, the Chief Judge in Equity of New South Wales, has warned estate lawyers "that if they continue to ravage estates by charging high legal costs, judges will step in and cap costs" and "that their fees may be in doubt if they allow big bills to be run up by 'claimants [who] are not particularly concerned about how much they get out of the estate as long as they ruin it for everybody else'." In his warning, published in the latest Law Society Journal, Justice Young cited "a case in April where a son had claimed against his father's $240,000 estate. The estate paid the son's legal costs - $40,000 - as well as its own $16,000 bill. The son ended up receiving a $60,000 legacy from the estate." Also arousing public ire of late have been a case last week in which "a woman was awarded a $60,000 legacy from her father's $1.5 million estate, with Supreme Court Master John McLaughlin commenting that the costs were 'excessive': $74,500 for the woman and $130,000 for the estate", as well as the case reported in this space Feb. 18-19, 2002, in which lawyers' fees ate up $112,000 of a $154,000 estate, leaving only around $30,000 for the contending parties. (Leonie Lamont, "'Sloppy' lawyers warned their costs may be capped", Sydney Morning Herald, Jul. 28).
Latest on the reparations bandwagon: A suit was filed earlier this month in Los Angeles Superior Court on behalf of an estimated 400,000 people of Mexican descent, seeking damages for the "irreparable loss" suffered during deportation campaigns in the 1930s. Representing the plaintiffs, and seeking class action status, are the Mexican American Legal Defense and Educational Fund and the Beverly Hills law firm of Kiesel, Boucher & Larson. ("Lawsuit seeks reparations for 1930s-era expulsion from California", CNN, Jul. 16). Update Sept. 14: legislature passes bill to facilitate suits.
Alaska: "Jamila Glauber, who was told to leave a city bus for eating a bite-size Snickers bar March 22, 2002, filed suit in Juneau on Monday against Capital Transit, the city and Tad Zurek, the bus driver. Glauber, represented by Anchorage attorney Jay W. Trumble, claims the actions of the defendants caused her severe emotional distress and were based on her race and national origin. As an Arab-American of Yemeni origin, she is protected from such actions under the Alaska Human Rights Act, the suit notes." ("Woman sues Capital Transit over 2002 incident", Juneau Empire, Jul. 23).
Our latest new guestblogger arrives tomorrow for a week of postings. And welcome to USA Today readers -- we get mentioned today in connection with a story on strange eBay auctions, a specialty of recent guestblogger Dan Lewis's site WhattheHeck.com (Karen Schubert, "Bazaar goes bizarre" , Jul. 28). For our original eBay item, see Jun. 21-23, 2002.
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.
"A Mississippi Supreme Court justice and a wealthy attorney who helped land the state millions in tobacco settlement money were among five people indicted Friday on federal fraud and bribery charges. Biloxi attorney Paul Minor is accused of funneling hundreds of thousands of dollars to Justice Oliver Diaz Jr., Diaz' former wife, Jennifer, and to two lower court judges. In return, Minor allegedly received favorable treatment for Minor and his clients in cases involving multimillion dollar judgments." The 16-count indictment also names former Harrison County Judges Wes Teel and John Whitfield. Prominent in the state's tobacco litigation, Minor is the son of a well known Magnolia State political columnist, Bill Minor. (Jack Elliott Jr., "Justice, Attorney Charged in Mississippi", AP/Sarasota Herald Tribune, Jul. 25; Jerry Mitchell, "Justice, 4 others indicted", Jackson Clarion Ledger, Jul. 26; Jerry Mitchell, "Charges may alter opinions of Miss. judiciary", Jackson Clarion Ledger, Jul. 27; Jack Elliott Jr., "Indictment of justice and lawyer come amid debate between Mississippi business, trial lawyers", AP/New Orleans Times Picayune, Jul. 27). More: Beth Musgrave, "'Go see Paul Minor'", Biloxi Sun Herald, May 18. For our earlier coverage, see: Oct. 9-10 and Oct. 11-13, 2002; May 7 and Jul. 24, 2003.
In April the Washington Supreme Court issued a six-month suspension from practice to Douglas Schafer, the Tacoma-based attorney who had divulged client confidences in the course of a successful effort to expose a corrupt judge (see Jan. 19, 2000)(Gary Young, "Attorney's suspension sparks debate", National Law Journal, Apr. 28; Adam Liptak, "Lawyer Whose Disclosure of Confidence Brought Down a Judge Is Punished", New York Times/Council of Public Relations Firms, Apr. 20; Schafer's website)
Apparently ending the most recent watch-what-you-say-about-lawyers episode (see Jun. 9, Jul. 12): "Two groups that have protested the Madison County legal system will not seek sanctions against a Wood River law firm that subpoenaed them to give information about their members and finances, the groups' lawyer said Monday. The Illinois Civil Justice League and the U.S. Chamber of Commerce dropped their request for sanctions against the Lakin Law Firm after deciding they had already made their point, said their lawyer, Gordon Broom." (Trisha L. Howard, "Seekers of tort reform drop action against critic", St. Louis Post-Dispatch, Jul. 21)(more watch-what-you-say-about-lawyers episodes).
"A federal jury has ordered a casino to pay $875,000 to a woman who was banished after trying to play a nickel token she found at an unattended slot machine." Estella Romanski, 74, of Troy, Mich., said she was held by security officers against her will at the MotorCity Casino in Detroit after she saw a nickel token laying in the tray of an unattended machine and played it. "[W]hat is called slot walking, the practice of picking up tokens from unattended slot machines ... is discouraged or prohibited by many casinos, including those in Detroit, though a rule against it is generally not posted." Romanski "said they also confiscated her $9 meal ticket as well as the nickel token and would not let her rejoin her group." (AP/Casino City Times, Jul. 23; Las Vegas Sun)(& welcome MyShingle.com readers).
New Mexico: "A group of firefighters and rescue workers who responded to a pipeline explosion near Carlsbad that killed 12 people three years ago have filed a lawsuit against El Paso Natural Gas Company." The lawsuit, filed on behalf of 24 firefighters and rescue workers, "says the plaintiffs suffered physical and emotional pain and were subjected to horrific traumatizing circumstances while fighting the fire and trying to help the victims." ("Firefighters, Rescue Workers Sue El Paso Natural Gas", KRQE.com, Jul. 1). Reader Daniel White comments: "While it is true that the subject pipeline accident was indeed horrific and killed several members of a family camping nearby, isn't it expected that firefighters and rescue workers will observe horrible things in their day-to-day jobs? Don't such things 'come with the territory' so to speak? ... Firefighters, law enforcement officers, EMTs and other rescue professionals chose to pursue such careers knowing full well that their jobs involve routinely responding to tragedy." The mayor of Carlsbad apparently agrees ("Mayor Opposes Pipeline Explosion Lawsuit", KRQE.com, Jul. 21). Update Apr. 1, 2004: judge dismisses case.
"A federal grand jury investigating state trial lawyers, judges and a Supreme Court justice could consider indictments as early as this week." (Jerry Mitchell, "Justice investigation may end this week", Jackson Clarion Ledger, Jul. 23). And the Mississippi Supreme Court has issued a new rule providing "that in multi-judge districts and courts, civil cases shall be assigned immediately by a random method when the complaint is filed," so that no one would know in advance who the judge was. "The problem is a few members of the bar are trying to manipulate the system to get the judge that they want," said Chief Justice Edwin L. Pittman. ("Judge selection process revised", AP/Jackson Clarion Ledger, May 31).
From Bleak House, ch. 1: "The little plaintiff or defendant who was promised a new rocking-horse when Jarndyce and Jarndyce should be settled has grown up, possessed himself of a real horse, and trotted away into the other world. Fair wards of court have faded into mothers and grandmothers; a long procession of Chancellors has come in and gone out; the legion of bills in the suit have been transformed into mere bills of mortality; there are not three Jarndyces left upon the earth perhaps since old Tom Jarndyce in despair blew his brains out at a coffee-house in Chancery Lane; but Jarndyce and Jarndyce still drags its dreary length before the court, perennially hopeless." And now from Louisiana comes word that the parish of East Baton Rouge is proposing to settle a school desegregation lawsuit that has dragged on for 47 years. (Charles Lussier, "School Board OKs desegregation pact", Baton Rouge Advocate, Jun. 26).
"In recent months the satellite TV giant has filed nearly 9,000 federal lawsuits against people who've purchased signal piracy devices. But some of those devices have legitimate uses". "They're catching a lot of dolphins in that tuna net" says one lawyer who has defended many targets of DirecTV demand letters and suits (Kevin Poulsen, The Register (UK), Jul. 17; Slashdot thread; Security Focus discussion).
"Medical-malpractice insurance underwriters in Pennsylvania lost $18 million last year, according to a new analysis by the state Department of Insurance that appears to underscore industry claims that Pennsylvania's tort system is driving insurers out of the state. ... Medical-malpractice insurance underwriters in Pennsylvania paid out $345.4 million in claims last year, about 31 percent less than the $499 million that insurers received in premiums from doctors, the department said. But while insurers earned $46.4 million in investment income, they also paid $136.9 million in legal costs and $81.1 million for taxes and other operating expenses." The actual loss figure attributable to 2002 may come in a good bit higher than $18 million when all accounts finally come to reckoning: "The insurers also put away $209.4 million in reserves for future claims." (Marc Levy, "State analysis shows Pa. malpractice insurers lost $18M last year", AP/Doylestown (Pa.) Intelligencer, Jul. 15).
More: reader James Ingram writes, "So what do these numbers show? Insurers collected $499 mm in premiums and paid $345 mm in claims and $137 mm in legal costs. If we assume that 1/3 of the amount paid in claims went to plaintiffs' lawyers (actually a pretty conservative figure, many charge more) that amounts to another $115 mm going to legal costs. Add $137 mm and $115 mm and you have $252 mm of the $499 mm that doctors, hospitals and other providers paid in premiums (more than half) going to legal expense while a maximum of $230 mm (46%) went to claimants. Great system, if you are a lawyer!"
Our editor's tentatively scheduled appearance tonight on National Public Radio has been called off.
From Britain's Daily Telegraph: "Trapeze artists with one of the world's most famous circuses have been told to start wearing hard hats to comply with new EU safety rules. Jugglers, tightrope walkers and other acrobats with the Moscow State Circus, which is currently touring Britain, have also been instructed to don safety head wear because of European regulations covering workers employed at heights greater than the average stepladder." Insurers apparently cited the new rules as reason to exclude coverage of future injuries incurred by helmetless performers (who went ahead yesterday and decided to perform without helmets anyway). One obvious question, which we assume the follow-up reporting will address, was whether the insurers were reasonably interpreting the EU directives. (David Sapsted, "Circus acts told to wear hard hats under new EU law", Daily Telegraph (UK), Jul. 23).
Crime does pay, but not as richly: A judge has reduced from $51 million to $9.75 million a Bronx jury's award to Darryl Barnes, who was paralyzed in a 1988 shootout with off-duty police officer Franz Jerome. Jerome gave chase on the night of Aug. 22 after spotting Barnes carrying an illegal Tec-9 semiautomatic and a shootout ensued: while Barnes (who pleaded guilty to assault on a police officer) denied that he fired his gun at Jerome, two Tec-9 shell casings were found at the scene and ballistics experts confirmed that they were from Barnes's gun. The officer's third shot entered Barnes's back from close range. A jury in 1998 awarded Barnes $76.4 million, a record for a police-brutality case, but its award was later thrown out and a retrial ordered when an appeals court ruled that the city should have been allowed to introduce evidence that Barnes was a member of the Five Percenters gang, which preaches hatred of police and advises its members to shoot rather than submit to arrest. The second jury, this March, deliberated for less than three hours before ordering the $51 million award, payable by city taxpayers. (Stephanie Gaskell, "$51M Award Cut to $9.75 M", New York Post, Jul. 10; Jeffrey Toobin, "Pay Day", The New Yorker, Apr. 21 & 28 (not online); Stephanie Gaskell, "Retrial Jury Awards $51M to Bronx Gunman Shot by Cops", NYPD News, Mar. 14; VerdictSearch/New York Jury Verdict Reporter, Mar. 13).
Our second guestblogger of the summer has completed his week-long stint, his postings appreciated especially because (in true law-student fashion) he came under the gun from some last-minute obligations that cut into his ability to spend time online. For more of his writing, visit his sites at DLewis.net (sports) and WhattheHeck.com. Look for more guestbloggers in coming weeks, and remember that it's still not too late to volunteer (preference given to those whose work we already know).
Why is there a secret snickering every time the legal profession poses as heroic champions of the Right to Privacy? In part because of stories like this one: "A New York state trial court has ruled that it is ethically proper for attorneys to advise their clients on how to surreptitiously tape-record their conversations with managers, co-workers and other third parties. ... It is the first court ruling on the issue since the American Bar Association reversed its stand in 2001 and issued an ethics opinion that supports an attorney's right to provide advice on surreptitious taping." (Steve Seidenberg, National Law Journal, Apr. 28).
Our editor has an op-ed in today's Journal on the latest developments in California's "shakedown lawsuit" scandal, in which law firms were discovered to be mass-mailing demand letters holding up small businesses for thousands of dollars apiece under the state's uniquely liberal "unfair competition law", otherwise known as Business and Professions Code 17200. In brief, the Democratic leadership of the state legislature in Sacramento is using the scandal as an excuse to push through legislation that, along with a bit of window-dressing reform directed at the more obvious shakedown artists, would actually increase lawyers' leverage to obtain settlements from defendants under section 17200. (Walter Olson, "The Shakedown State", Wall Street Journal, Jul. 22). We covered the scandal earlier on Jan. 15-16 and Mar. 3; for more on California's bounty-hunting Prop 65, follow these links and in particular our post for Nov. 4-5, 2002. More: The Civil Justice Association of California maintains a lot of information on the status of section 17200 legislation, especially here, here and here.
Deputy U.S. Attorney General Larry D. Thompson professes to believe, at one and the same time, that it is "bedrock" law that incorporated businesses be held to vicarious criminal liability for the acts of their employees and agents, and that the law both does and should set a single standard for individual and business criminality, rather than dealing more severely with business. ("'Zero Tolerance' For Corporate Fraud", Wall Street Journal, Jul. 21). Which raises the question: will Mr. Thompson volunteer to serve jail time personally should one of his household employees commit vehicular manslaughter while on the way to buy him groceries? "Robert Musil" wonders, and so do we (Jun. 21).
Various cosmetic companies settled a class action suit today. They were accused of price-fixing and collusion, the rank enemies of a competitive market. The companies, by and large, settled -- it's probably cheaper to do that than to litigate, given the chance (however slight) of a jury giving the class a bonanza of a deal. So, what do all the wrong customers get? One (1) item. Enough lipstick to last a few weeks. What do the lawyers get? The AP didn't mention it, but I'm sure it's a lot more than a tub of mascara and some blush. Would anything make a class action lawyer blush? ("Settlement could give away $175 million in cosmetics," AP, Jul. 22). Update Apr. 14: settlement challenged; May 19: more details.
Lawyers and judges in Beaumont, Texas are far from pleased to hear their city called a "judicial hellhole" and "the Barbary Coast for class-action litigation." "Defense lawyer James R. ("Jay") Old Jr. says the county has unfairly gotten a reputation as a place where 'the plaintiffs and defense bar work together to combine for the greatest amount of billables for the defense lawyers and the greatest recoveries for the plaintiff'". Why, sir, the very idea is preposterous! Besides, there's a silver lining in the city's reputation as a forum-shopping destination for lawyers around the state and country: "In fairness, it represents to us an industry. It puts a lot of people to work here," says Jim Rich, who heads the Beaumont Chamber of Commerce. However, things might be changing: recent elections have shifted the three-member appeals court that oversees Beaumont to a 2-1 Republican edge, from 3-0 Democratic. (Terry Maxon, "Beaumont known for torts", Dallas Morning News, Jul. 20).
Against a backdrop of growing political difficulties for Missouri Governor Robert Holden, "how did Holden's campaign pile up an impressive $623,245 in contributions? Who are the governor's backers and why are they opening their wallets? ... Reports filed last week show that the biggest identifiable chunks of money the last three months came from two groups: trial lawyers and labor unions." Holden just vetoed a bill that would have limited damages in lawsuits. Besides giving more than $80,000 to his campaign in the last quarter, lawyers also gave $240,000 to the Missouri Democratic Party. (Virginia Young, "Lawyers, unions give big to Holden war chest", St. Louis Post-Dispatch, Jul. 21.)
Per a Gallup Poll conducted July 7-9, "nearly 9 in 10 Americans (89%) oppose holding the fast-food industry legally responsible for the diet-related health problems of people who eat that kind of food on a regular basis. Just 9% are in favor. Those who describe themselves as overweight are no more likely than others to blame the fast-food industry for obesity-related health problems, or to favor lawsuits against the industry." (Lydia Saad, Gallup News Service, Jul. 21). Some opinion pieces: Kathleen Parker, "A ludicrous premise for a lawsuit: Obesity is the food's fault", Chicago Tribune, Jul. 16("It's hell living in a rich country with too much to eat, isn't it? ... The idea that restaurants are trying to make food taste better by combining sugar or fat to their protein, also known as 'cooking,' hardly qualifies as criminal conduct."; Robert Tracinski, "Reductio ad Totalitarianism", Ayn Rand Institute, Jun. 26 (quotes our editor)("The problem with the 'reductio ad absurdum' argument, one of my philosophy teachers once warned me, is that your opponent may simply embrace the logical end result of his ideas -- no matter how absurd it is. And that's exactly what is happening now."); Patti Waldmeir, "In America it takes lawsuits to change lives", Financial Times, Jul. 21 ("the point is publicity, not liability. ... My children have never seen a McDonald's advert: they know instinctively that fat is good"). Yet more: James Justin Wilson, "Battling the Fat Suits", National Review Online, Jul. 21; John Stossel, "Give Me a Break!: Food Fight", ABC News, Jul. 18.
"Alcoholics are attempting to make legal history by suing the drinks industry for failing to warn them of the dangers of addiction. Twelve addicts, aged between 18 and 60, claim their lives have been destroyed by the demon drink and that they were not warned of the risks." Lawyers from the Glasgow firm of Ross Harper "believe they can use the arguments employed in successful prosecutions against huge American tobacco companies in 2000 to win their case" and are applying for officially funded legal aid to help finance a test case. (Glasgow Daily Record, Jul. 21). Liquor companies have been curiously absent from the list of targets of mass litigation campaigns in the U.S.A. in recent years; but see Mar. 22, 2000.
We've all seen them, checked off the "I Agree" box, clicked "Continue" or "Next" or whatever the button says. But end user license agreements (EULAs) aren't read too often. Which is why this is funny.
U.K.: "Tony Martin, the farmer who killed a criminal who broke into his house, has been denied a preparatory home visit before his release on parole next week because he is considered to be a "danger to burglars"." (Daniel Foggo, "Tony Martin refused leave 'because of risk to burglars'", Sunday Telegraph (UK), Jul. 20). Last month, in a decision that caused a public furor in Britain, a judge ruled that career criminal Brendan Fearon was entitled under the Human Rights Act "to sue Martin for a reported £15,000 damages for wounds he received during a break-in at the farmer's home in Emneth Hungate, Norfolk, in August 1999. ... Unemployed Fearon, who is currently serving an 18-month sentence for heroin dealing, claimed his injuries [Martin shot him in the leg] had affected his ability to enjoy sex and martial arts and that he had suffered post traumatic stress." ("Ex-Minister Calls for Review over Fearon Case", Nottingham Evening Post, Jun. 25; Chris Bishop, "Date set for burglar's bid to sue Martin", Eastern Daily Press, Jul. 2)(more "maybe crime does pay" cases).
Disgraced law professor Mark M. Hager, after being suspended by the District of Columbia bar for a year, at last has resigned his tenured job at American University's law school, the Washington Post reported in April (James V. Grimaldi, "Hearsay: The Lawyer's Column", Washington Post, Apr. 21 (not online); Mary P. Gallagher, "How Not To Settle a Multiparty Suit", New Jersey Law Journal, May 5 (not online); Julianne Basinger, Jamilah Evelyn, and Katherine S. Mangan, "Suspended Law Professor Loses Tenured Job", Chronicle of Higher Education", May 9 (not online). In December the District of Columbia Court of Appeals found Hager "to have engaged in 'conflicts of interest, dishonesty' and 'improper conduct' when he represented two southern Virginia mothers who wanted to sue the makers of the lice-killing shampoo Nix. The court upheld the D.C. Bar's one-year suspension of Hager and further ordered him to disgorge the $225,000 fee he shared with co-counsel." (James V. Grimaldi, "Misconduct in Lice Case Puts AU Professor's Job in Jeopardy", Washington Post, Mar. 10). For our earlier coverage of the Hager affair, see Feb. 23, 2000 and May 3, 2001.
"The Georgia Court of Appeals has revived a junk fax case that involves 73,500 faxes and potential fines of $110 million." The ruling revives a lawsuit against a metro Atlanta car wash, Carnett's Inc., for paying an ad agency $3,200 to send faxes to what it says it thought would be a "clean" list of recipients who didn't object to receiving them. A federal law provides for automatic $500 to $1500 fines for each fax sent without permission. (Rachel Tobin Ramos, "Appeals Court Revives Hope for Junk Fax Class Action", Fulton County Daily Report, Jul. 2) (more on junk-fax litigation: Oct. 22, 1999; Jul. 24, 2001 and links from there; Aug. 26, 2002)
A Colorado DA has gone ahead and charged LA Laker star Kobe Bryant with third-degree sexual assault. ("Kobe Bryant Charged With Sexual Assault," AP, Jul. 18). He's already admitted to committing adultery (which would still keep him near the top of the "NBA's Most Noble Stars" list). But given the severity of this charge -- it's borderline rape, if not rape itself -- there's not going to be a wrist-slap plea like in the Chris Webber perjury case. ("Webber's Guilty Plea Ends Michigan Probe," AP, Jul. 15).
The statements made today by the DA in Kobe's case are troubling, particularly his claim that "[these charges] did not come easily." (ESPN, Jul. 18). My friend Ananda Gupta pointed out that a cynic would believe the DA would want to press charges -- after all, Marcia Clark is a household name even almost a decade post-OJ. On the other side, if the DA has a case, where's the difficulty? (If you want another OJ reference: "If there was a fight, you must indict.")
Yes, the DA has prosecutorial discretion as to what cases to bring, but if, in his words, he believes he "can prove this case beyond a reasonable doubt," the decision should be a mechanical one. There are few exceptions to this (especially in sexual assault cases), and the popularity of the would-be defendant and related fall-out isn't on the list of loopholes. Or at least it shouldn't be.
Rather belatedly, we've sent out our periodic newsletter with highlights from the site, the first since our format change last month. If you'd like to get on the mailing list (currently 2400 strong!) to receive this, it's easy; go to this page and sign up via the Topica service.
We've also used the format change as an opportunity to introduce new topic pages collecting items with a single theme. There are now separate pages on Australia and the United Kingdom to go with our previous page on Canada. And there's a new page on sports law (Dan Lewis is doing a great job of filling it up with content) as well as crime and punishment. One regret is that we're not equipped to go back and index items published in the pre-June 2003 format that belong in these categories.
Oregon: "Women who have delivered a baby by Caesarean section must deliver their next child the same way if they give birth at Merle West Medical Center. The hospital's board of directors today announced a new policy that supports a decision by local obstetricians to not deliver a baby vaginally if the mother has had a previous Caesarean section, a surgical procedure that delivers the baby by making an incision in the abdomen and uterus. The decision is based more on legal implications related to the potentially high-risk procedure than on medical statistics, said Dr. Rick Zwartverwer, vice president for medical affairs at Merle West Medical Center." (Marcia McGonigle, "Hospital alters C-section policy", Klamath Falls (Ore.) Herald & News, Jul. 8)(see Feb. 5, 2001).
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.
The law school meme of the moment is this order by a magistrate judge (link via Volokh.com, but trust me, it's going around). Read the whole page and a half when you get a second. It's a .pdf file, but Eugene Volokh has it as plain text on their site. And remember, the judge has a sense of humor, but it's not necessarily a good one. You have to turn that in when you take the LSAT.
The big silliness of the day? A reverend, presiding at a funeral, allegedly said that the recently deceased man of the hour "was "living in sin," "lukewarm in his faith" and that "the Lord vomited people like Ben out of his mouth to hell." The survivors, of course, are suing for emotional and physical suffering. Now, say what you will about the emotional claim -- I'm sure most would agree with me and shake their heads in disbelief -- but physical harm? There are no allegations that the reverend dropped the casket on anyone's foot. But hey, it could get even more ridiculous. Writes Ted Frank: "Clearly the plaintiffs aren't thinking ambitiously enough. If their concern is the emotional distress from townspeople thinking that their father is in hell, they should be demanding injunctive relief to place their father in the appropriate afterlife." Or perhaps a restraining order against Satan, ordering him to keep a distance no less than three ethereal planes from the soul in question? (Zelle Pollon, Reuters, Jul. 17). Other commentary: See the Volokh Conspiracy, OpinionJournal's Best of the Web Today (last item).
David Giacalone is posting more interesting stuff at his new EthicalEsq? blog than we can hope to keep up with, particularly on the topic of excessive contingency fees (on which he challenges Public Citizen to amend its not-exactly-pro-consumer stance). One state that has taken a step in the right direction lately is Arizona, whose Supreme Court in June adopted new Rules of Professional Conduct that come down harder on overreaching fees than do the rules of the American Bar Association (Jun. 30).
In recent years Arizona has made itself into something of a laboratory for legal innovation. Of particular interest to us (see Jul. 7 commentary) is a seemingly minor one-word change to the state's Rules of Professional Conduct (Jun. 6). To quote the court system's press release, the change "removed the obligation of an attorney to be a 'zealous' advocate of his/her client and substituted to 'act honorably' in the furtherance of a client’s interests. According to Arizona Supreme Court Vice-Chief Justice Ruth McGregor, 'Arizona is the first state in the country to make this crucial rule change.' ... 'We are advised that this definitional change will also be considered by the American Bar Association,' says McGregor. 'This change may appear to be subtle,' explains Chief Justice [Charles E.] Jones, 'but in fact, it's a very significant foundational change in the Rules of the Court, and one that is designed to send a distinct message to attorneys.' The term 'zealous' was eliminated from the preamble, because it was erroneously being used by some attorneys to defend behavior that was seen as unprofessional and potentially belligerent, according to one committee member. 'Jones explains that the State Bar committee's recommendation ... harkens back to a time when lawyers were closely identified as officers of the court. As such, they were duty bound to represent their clients with personal and professional ethics and integrity in mind.'"
We're impressed. Time and again, in our experience, the putative obligation to represent clients in a "zealous" fashion has proved the last resort of the scoundrel litigator and ethical edge-skater. Yes, in principle there can also arise dangers when lawyers aren't zealous enough, but no sane observer could imagine that the big problem with American litigation is that lawyers care so much for honor that they aren't combative enough. We'll be watching with interest to see whether the change produces any felt difference in Arizona litigation practice.
Former Texas Attorney General and key tobacco-suit figure Dan Morales, long a focus of scrutiny on this page, has withdrawn his former plea of innocent and has agreed to a four-year prison term, pleading guilty to one count each of mail and tax fraud; he will also pay fines of up to $1.25 million (Ken Herman & David Hafetz, "Morales pleads guilty to mail fraud, tax evasion", Austin American Statesman, Jul. 17; more stories). The mail fraud charge relates to a backdated contract in which Morales purported to bestow a chunk of the state's tobacco-settlement booty on his friend Marc Murr (see Jun. 26 and links from there). Our big question -- our only question, really -- is: does this mean he'll talk?
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.)
"The High Court stunned doctors yesterday with a landmark finding that a surgeon who bungled a woman's sterilization is liable for the cost of bringing up her child to the age of 18." Kerry Melchior's son Jordan is perfectly healthy, but she sued Queensland ob/gyn Dr. Stephen Cattanach and the state health department because the tubal ligation he had performed had not prevented pregnancy as intended. (Cynthia Banham, Sydney Morning Herald, Jul. 17). Dr. Andrew Pesce, who chairs the Australian Medical Association's professional indemnity task force, said "the decision was a part of a pattern where doctors' liability was gradually increased over time, so that 'nobody actually knows what their obligations are'". For similar American cases, see Apr. 26-28, 2002.
Escalating liability had already provoked an insurance crisis for ob/gyns Down Under, as in the States; especially hard hit are women practitioners who often maintain less than a full-time practice but must pay hefty flat-rate premiums anyway (Wendy Tuohy, "A labour of love becomes labour too hard, and too risky", Melbourne Age, Jul. 5). Among those quitting is Dr. Denise Koong, though some of her patients have "begged her to reconsider, saying things like: 'Give me the paper and I'll sign it, I will promise not to sue you!'" Trouble is, the courts (certainly in the U.S., and we presume in Australia these days as well) toss out such written promises as unenforceable.
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).
Pedestrians around New York City can relax a bit: the Second Circuit has upheld the right of the city's Transit Authority to remove from his job as a bus driver Curtis Shannon, whose color-blindness renders him unable to distinguish traffic signals. (Shannon v. NYCTA, 332 F.3d 95, summarized at Neighborhood Legal Services site; Second Circuit, search on docket for #02-7266, decided Jun. 13, 2003).
FoxNews.com's "Views" section names us its "Blog of the Week". If you're interested in strange lawsuits that engage in creative blame-shifting, a good place to start is with our older personal responsibility archives, followed by our newer ones. (& welcome Howard Bashman readers)
Mississippi: "Civil lawsuits filed in Jefferson County allege that lawyers signed up fake clients for a 1999 lawsuit that resulted in a $150 million jury verdict against the makers of a diet drug." According to the allegations, lawyers knew that some clients being recruited into the action had never actually taken the diet drug but "looked the other way". Defendant lawyers called the allegations "ridiculous" and "preposterous". Federal law enforcers will not disclose details of their investigation of Jefferson County product liability litigation (see Jun. 29, May 7 and links from there), but it is known that the FBI has subpoenaed prescription records from Fayette's Bankston Drug Store, which is frequently named in suits (see May 4-6, 2001). (Tom Wilemon, Beth Musgrave and Margaret Baker, "Lawyers faked diet-drug case clients, lawsuits claim", Biloxi Sun-Herald, Jul. 1; "Miss. lawyers accused of wrongdoing in suit", AP/Jackson Clarion-Ledger, Jul. 2).
"A prominent San Francisco attorney who represented the young, sick and poor was arrested Tuesday on federal charges of stealing $2 million of his clients' settlement money to support a lavish lifestyle that included a six-bedroom mansion and a 73-foot yacht." At its website, the successful San Francisco law firm of Tehin + Partners boasts of having "achieved an exceptional record of performance in litigation and trial through our 20 years + experience as a contingency fee-based plaintiff's law firm", not to mention "A Legal Philosophy That Sets Us Apart". Today's San Francisco Chronicle has a full helping of grotesque details (Stacy Finz, "S.F. attorney charged with bilking underdog clients", Jul. 16)
It bears repeating that of all the institutions to which the temporal wealth of poor people is entrusted, law firms are among the least regulated; when outside authorities finally step in to clean up the mess, as here, it is typically after the fact, rather than in a preventive way through the sorts of regular disclosure and auditing requirements that banks or pension funds must meet. Nikolai Tehin lists among his affiliations Board of Directors, San Francisco Trial Lawyers Association.
Our editor was interviewed at some length, particularly on pending gun and asbestos legislation, on the BBC World Service's weekly World Business Review. (Accuracy of transcript not guaranteed.) There's an audio link, too. Both links may disappear on Saturday when the BBC site updates to the next week's show.
While on the subject of publicity, our editor's book The Rule of Lawyers came in for a lengthy review from Neil Hrab of Canada's National Post in the July issue of Organization Trends, a publication of the Capital Research Center in Washington, D.C. ("More Than Good Friends: Trial Lawyers and Nonprofits", PDF format, scroll to p. 7). Also, thanks for very kind mentions lately to a number of weblogs you should know about: Ernest Svenson's Ernie the Attorney, MedRants, Steve Pilgrim's Rodent Regatta and Aaron Haspel's God of the Machine (the most philosophical spin on fast-food lawsuits you'll read this month -- it's not easily paraphrased, just go read it).
Twice in June, Raj Singh Valcha and Harjeet Singh Saini's corner store was burglarized. Total cost: $42,000. Total arrests: Zero. Their reply: Take shifts with an aluminum bat, lying in wait for the inevitable third strike. They didn't have to wait long -- before the month was out, they were burglarized again. One criminal was incapacitated, the other escaped. And the storeowners? Cited for aggravated assault. To make matters worse, a reader writes: "Of course the editorials are against defending your own property." Of course. The first-year law student prospective? No shock here either. When we heard our torts professor mention burglars who slip and fall and sue the would-be victims, mouths drop, people laugh in disbelief, but hey, that wears off by the third day of class. ("Vigilante policing no way to fight crime," Montreal Gazette,
Jul. 2; also check out a letter to the contrary: "Law now favours robbers and oppressors," Undated).
Mike Tyson is being sued -- by his psychiatrist. (If that's not the start of a good post, what is?) Seems that Iron Mike -- a candidate for psychotherapy if there's ever been one -- has been seeing one Mitchell Gibson at the cost of $12k a month, plus $900 for "emergency cross-country visits." But now Mike won't pay up the $44,000 he owes the analyst. We're not one to agree with Tyson, but if the shrink couldn't talk him out of getting the Che Guevara and face tattoos... well, at least he didn't bite Lennox Lewis. Yet. ("Tyson sued by his shrink," Agence France-Presse, Jul. 15; Link via Fark).
And that's not all! Tyson is doing his part keeping lawyers above the poverty line by beating up bodyguards. Apparently, the former champ "[ran] down the median of I-95 on top of the concrete barrier, with a string of winded people in pursuit" and then punched Izzy Bolton, Don King's bodyguard, smack in the face. Bolton needed stitches and now claims to suffer from double vision. ("Mike Tyson sued over attack on Don King bodyguard," Atlanta Constitution-Journal, Jul. 12).
Hi, I'm Dan Lewis. Pleased to meet you. You may have met me before -- I run WhatTheHeck.com, home of the strange eBay auction archive. And I'm a sportsblogger -- yes, we exist! -- over at my personal site, DLewis.Net. (Yes, .com was taken.)
But why am I here? Glad you asked. Sure, I can, and will, sprinkle some sports posts here. But get this -- I'm a first-year law student. That's right, I'm being trained to come up with "creative legal theories," not dissimilar from those that have graced OverLawyered for four years strong. It's my pleasure to be with you for the rest of the week.
"Her new suit against oil companies and Beverly Hills has little scientific grounding" and the one that originally established her fame, over groundwater contamination in Hinkley, Calif., wasn't much better, argues columnist Leon Jaroff at Time magazine (Jul. 11). We looked into the Brockovich saga a few years ago and came to very similar conclusions (Reason magazine, Oct. 2000); see also numerous posts in this space.
Following heavy lobbying by trial lawyers, the lower houses of the New York and Rhode Island legislatures have refused to act to limit auto leasing companies' currently unlimited "vicarious liability" for their lessees' crashes, thus apparently ensuring that Ford, Honda and other major automakers will continue fleeing from the two states. We covered the controversy in a Jun. 9 op-ed as well as in earlier posts. New coverage: Ed Garsten, "Firms halt N.Y. vehicle leases", Detroit News, Jul. 6; Matt Smith, "Auto leasing companies fleeing state", Ottaway/Middletown Times-Herald Record, Jul. 2; Jeremy Boyer, "Dealers steer way past loss of leasing", Albany Times-Union, Jul. 3; "Bill Limiting Accident Liability Appears Doomed", TurnTo10.com (WJAR-TV Providence), Jun. 30 (R.I.). Update Aug. 3: Reform not doomed in R.I. after all, major automakers agree to stay after governor signs one-year fix limiting liability to $300K, leaving N.Y. as only state with unlimited liability.
Who says academics are skittish about pursuing potentially explosive research topics? In "Race, Poverty, and American Tort Awards: Evidence from Three Data Sets," in the Journal of Legal Studies, Eric Helland of Claremont McKenna and Alexander Tabarrok of George Mason University analyze data on jury awards by county. Their conclusion: "An increase in the black county poverty rate of 1 percentage point tends to raise the average personal injury tort award by 3 to 10 percent. An increase in the Hispanic county-poverty rate of 1 percentage point tends to raise awards by as much as 7 percent although this effect is less well estimated. These effects imply that forum shopping for high-poverty minority counties could raise awards by hundreds of thousands of dollars. Average awards fall with increases in white (non-black, non-Hispanic) poverty rates in two of our datasets, thus making these findings even more surprising." (JLS table of contents; Tyler Cowen at the Volokh Conspiracy got there first).
The asbestos litigation compromise now pending in Congress may be a good bill or it may be a bad one, but there's no excuse for the L.A. Times's absurdly slanted coverage of it, argues Hugh Hewitt today (HughHewitt.com, Jul. 14; David G. Savage, "Asbestos Bill Could Be Windfall for Business", Los Angeles Times, Jul. 14)(via Southern California Law Blog).
"Three men spent seven hours in police cells after being arrested for 'stealing' seaweed from a Sussex beach to feed their pet tortoises." Two police cars and an officer on motorcycle swooped down on friends Simon Braisby, Tony Sims and Deon Marshall who "were gathering sea kale on Eastbourne beach for Mr Sims' five tortoises. ... The men were arrested, handcuffed and put in the back of different police cars, then locked up in separate cells while Mr Braisby's home was searched. After six hours in custody the men were interviewed and eventually released without charge." Authorities told reporters the seaweed was considered protected flora. (Brighton and Hove Argus, week ending Jun. 25, first roundup item; "Arrests after 'rare' plant hunt", BBC, Jun. 24) (via Dr. Weevil who got it from Electric Venom; check out the latter's comment section for news of a German anthill-protection law).
A half dozen readers have now written in responding to our query on this problem (see Jul. 11), and we're pretty sure we understand it now. It seems to afflict users of older browsers that cannot handle newer implementations of Cascading Style Sheets (CSS) such as those used in Movable Type.
In fact, we replicated the problem ourselves by calling up the site on an ancient Netscape 4.79 Navigator browser. Typically, in this kind of failure, the links on the main (left) column are unusable while the links on the right (blogroll, etc.) column will work as usual. Browsers of this vintage will have problems displaying many sites of recent design; for example CorpLawBlog shows the same links-don't-work problem.
What to do? We begin with reader-side fixes: 1) upgrade to a more recent browser (we assume this is the best advice for most readers); 2) Some noncurrent browser versions (such as Opera's) have a toggle-view switch by which users can make the links workable, though possibly at the cost of making the display look even more jumbled. 3) At Tantek Çelik's site there is a "Toggle CSS style sheets" button which you can drag to your toolbar or favorites section, achieving the same effect (sounds promising, but we haven't tried and can make no guarantees). 4) Another reader writes: "It's not a major problem for me; I work around it by looking for the entry in the 'Recent Entries' section, where the links work."
Then there are fixes that could be installed on our side. One brute-force method, which we don't care for, would be to stop displaying in columns altogether, relegating the blogroll and other permanent links to the bottom beneath all the recent blog posts. Another reader suggests that we install the tantek.com "Toggle CSS style sheets" button ourselves in a visible location, which we assume would increase our page size and thus load time. A third reader suggests that we tinker with our own CSS file as follows: "Either delete 'position:relative;' or comment it out (replace with '/*position:relative;*/')." But we're wary of tinkering with the code unless we understand all the effects of doing so.
Right now, we're inclined to recommend that readers try one of the reader-side methods outlined above if they have this problem, which will have the incidental benefit of making many other sites more usable as well. We'll try to keep an open mind about the possible fixes to be done on our side, though.
P.S. Our original correspondent from the House of Representatives writes to say that his office updated its browsers and now all the links on this site work fine.
Our experiments with guest-blogging resume tomorrow (Tuesday). This time our editor is not going on vacation; there'll just be two of us posting instead of one. Come back tomorrow when we unveil the identity of the mysterious stranger.
What with our vacation over the July 4 holiday, we neglected to make note of another milestone for Overlawyered.com, namely our fourth anniversary (we launched on July 1, 1999). We've had millions of visitors over those four years, with traffic currently running at around 3000 visitors and 8000 pages-served per weekday (with a big fall-off on weekends). Those curious about how this stacks up against other sites' popularity may consult N.Z. Bear's weblog traffic rankings, which cover only those sites using SiteMeter counters (we are not among them). The site's redesign a month ago does not seem to have affected our traffic volume one way or the other.
Madison County, Ill. class action lawyer Bradley Lakin has withdrawn his subpoenas aimed at four organizations that had spoken out against lawsuit abuse in the Madison county courts: the U.S. Chamber of Commerce, Illinois Civil Justice League, American Tort Reform Association and Illinois Chamber of Commerce (see Jun. 9). Lisa Rickard, president of the Chamber’s Institute for Legal Reform, called the subpoenas "an illegitimate attempt to silence the critics of lawsuit abuse." The ICJL, which has filed a sanctions motion against Lakin, has its own press release as well as links. (Further update Jul. 26: sanctions motion dropped)
Now San Francisco Giants fan Alex Popov's lawyer is suing him for $473,500 in legal fees. Popov and another fan disputed who caught the record-setting ball, and a judge ordered them to split the auction proceeds, which came in less than expected at $450,000 (see Jul. 1). ("Fan who caught Bonds' record HR sued", AP/Sporting News, Jul. 8.)
"Harvard has revoked its admission of Blair Hornstine, the prospective member of the Class of 2007 who made national headlines when she sued her school system to ensure she would be her high school’s sole valedictorian." (Elizabeth W. Green & J. Hale Russell, Harvard Crimson, Jul. 11)(see Jun. 30, May 13, May 3-4).
Profile of bigshot tort lawyer Ron ("U.S. foreign policy, c'est moi") Motley, who after ultra-successful runs in asbestos and tobacco and a far less successful run against lead paint manufacturers has embarked on a crusade to sue various rich Saudi Arabians over Sept. 11 because they allegedly had paid off bin Laden over the years, whether from sympathy, fear or other motives. The State Department has repeatedly complained that the suit (with its demands for compulsory discovery of foreign nationals, etc.) threatens to upset the delicate management of U.S.-Saudi relations, but who (aside from the U.S. Constitution) says the executive branch should get to run foreign relations anyway? Quotes our editor (Tony Bartelme, "The King of Torts vs. al-Quaida [sic] Inc., Charleston Post & Courier, Jun. 22). Newsiest nugget to us: according to the article, Motley has hired full time to work on the case a well-connected Washington lawyer named Harry Huge; this is pretty rich once you consider something not spelled out in the article, which is that Huge served on most if not all of the arbitration panels that awarded the Ness Motley firm vast fortunes in the state tobacco litigation. What could be more ingenuous and conflict-of-interest-free than for Motley to turn around and give him a job?
A reader writes: "On the newly designed Overlawyered.com, the links no longer work, at least they don't every time I've tried to use them from my computer on the House of Representatives network. I don't know if this is a problem on our end or yours, but I thought I might flag the issue, as not being able to link to cited articles unfortunately makes Overlawyered.com much less useful to folks on Capitol Hill."
Any other readers or sites report this problem? We recently viewed the site with a very old browser (under Windows 95) and while Movable Type didn't display optimally, the links did work. Any technically savvy readers know what the problem may be here, and whether there's an easy fix for it on our end? (See update Jul. 14).
"The current arrangement delivers justice at random, in widely varying amounts or not at all, depending on whether you’re feeling litigious, how good your lawyer is, or what a judge or a juror had for breakfast that day. ... It is a society with an odd sense of justice that awards millions of dollars to every 25th victim of what may or may not have been a botched operation, but doesn’t guarantee basic health care to anyone." ("The lawsuit lottery", MSNBC, Jul. 11).
The Senate's failure to invoke cloture on medical litigation reform proceeded on strict party lines, with no Democrats voting for and only two Republicans voting against, Shelby of Alabama (no surprise there) and Lindsey Graham (R-S.C.). (Helen Dewar, "Medical Malpractice Bill Dies in Senate", Washington Post, Jul. 10). What's with Graham? -- wonders Wyeth Wire.
MedPundit Sydney Smith as usual offers omnibus coverage of the malpractice debate, including a new column of her own ("The Threat to Medical Innovation", TechCentralStation, Jul. 11); a new study from researchers at the Agency for Healthcare Research and Quality finding that states with liability caps "experienced a more rapid increase in their supply of physicians" than states without; a funny Scrappleface satire on how doctors should start prescribing cash as a remedy for pain and suffering since that's what the government considers suitable (Jul. 8, and read the comments); a critique of a typically benighted treatment of the subject in The American Prospect; and more (scroll down, too).
The Texas case we covered on May 23 and Jun. 26, 2000 and Mar. 17 of this year has now eventuated in a suit by DaimlerChrysler against the Kugle Law Firm. A trial court dismissed the Kugle firm's $2 billion suit against Chrysler and imposed sanctions of $865,000 against three of the firm's lawyers after finding that the steering decoupler of the sued-over Dodge Neon had been altered to simulate mechanical failure and that Mexican policemen had been asked to change their accounts of the accident giving rise to the suit. An appeals court called the firm's conduct 'an egregious example of the worst kind of abuse of the judicial system.'" "The senior lawyer at the firm, Robert A. Kugle, has been suspended from the Texas bar and has moved to Mexico. He could not be located for comment." (Adam Liptak, "Law Firm Is Sued Over Conduct in Liability Case", New York Times, Jul. 10; AP/Miami Herald; San Antonio Express-News). More: David Giacalone at EthicalEsq.? weighs in.
Whoops, there goes another Eliot Spitzer project: last week federal judge Milton Pollack dismissed investor lawsuits against brokerage Merrill Lynch based on emails dug up by the New York AG and widely billed in the press at the time as "smoking guns" providing "slam dunk" litigation potential for private plaintiffs. "Judge Pollack used scathing language in his decision in favor of Merrill Lynch released Tuesday in which he explained why he thought plaintiffs had no case. He described the plaintiffs as 'high-risk speculators' who lost their money 'fair and square' during the bull market of the late 1990s. (Greg Cresci, "Investors blaming Wall Street should think again", Reuters/Forbes.com, Jul. 2). Meanwhile, a bill pushed by Wall Street firms in Congress would rather cleverly direct the proceeds from massed state-AG regulatory actions away from state budgets and toward the putative victims, namely investors (via the federal Securities and Exchange Commission). State governments in general were not big losers from the challenged Wall Street practices, yet Spitzer's settlement arranged to spray large sums of money in their direction, winning him lots of gratitude-chits from the political class. Spitzer and his friends are howling foul at the proposed change, thus raising the question of to what extent their crusades have really been motivated by the welfare of mom-and-pop investors after all (Greg Farrell and John Waggoner, "House bill would steer Wall Street fines away from states", USA Today, Jun. 10). More: a New York Times follow-up points out that what got thrown out were cases brought by nonclients of Merrill, an unusually lame category of claimant, and that actual Merrill clients can still proceed on claims that they lost money relying on deceptive research, though some of the judge's findings, such as that Merrill's research was "replete with risk warnings", will still prove helpful to the firm in defending those claims. (Landon Thomas Jr., "Legal Reprieve for Wall Street Is Not Likely to Last Long", New York Times, Jul. 4)
But not until after a publicity bonanza for both sides. Filmmaker Shelton Lee (see Jun. 16-17) now says "I no longer believe that Viacom deliberately intended to trade on my name when naming Spike TV. As an artist and a filmmaker, I feel that protection of freedom of expression is a critical value, and I am concerned that my efforts to stop Viacom from using the Spike TV name could have the unintended consequence of threatening the First Amendment rights of Viacom and others. I am pleased to be able to resolve this matter and be able to work with Viacom on new projects". (Buzz Johnson, "Spike Lee and Viacom Settle", FilmStew.com; Washington Post; Hollywood Reporter/Reuters). Earlier, the son of musician Spike Jones filed court papers in the case, saying (per AP) "it is 'frightening' that filmmaker Spike Lee is trying to claim exclusive ownership of the name 'Spike.'" (see The Legal Reader, Jun. 24).
"The latest settlement in litigation over California's energy crisis includes tens of millions of dollars in attorney fees to be shared by a handful of politically savvy plaintiffs' firms. ... Besides Lieff Cabraser, private firms that will collect a share of the fees include Kiesel, Boucher & Larson of Beverly Hills, Calif., and Girardi & Keese; Engstrom, Lipscomb & Lack; and O'Donnell & Shaeffer, all of Los Angeles. " (Jeff Chorney, "Powerful Payday", The Recorder, Jul. 8).
At The New Criterion's newly launched weblog Armavirumque, James Panero tells how the Americans with Disabilities Act led to the installation of a wheelchair ramp at Galehead Hut in northern New Hampshire, which is "perhaps the most inaccessible" of the Appalachian Mountain Club's historic system of White Mountain huts and can be reached only by hiking over very rugged terrain (Jul. 7).
Also via Armavirumque (Jul. 8), Theodore Dalrymple on the premise behind fast-food lawsuits: "Left to his own devices, the denizen of hamburger restaurants would eat fresh carrots and brown rice, his natural choices. ... This picture is of a world in which humanity as a whole is good, but is so innocent that it is diverted from the paths of righteousness by a few evilly disposed persons such as the directors of food companies. Were it not for them, we should all be thin as rakes and fit as fleas." ("The Devil's Food Cake Made Me Do It", National Post (Canada), Jul. 5).
The meat purveyor is asserting trademark rights: "Claiming dilution of the trademarked name Spam, the company has filed complaints against Spam Arrest LLC, a Seattle technology company that provides spam-blocking software for e-mail users." (Jonathan Krim, "Hormel Foods challenges Spam Arrest's trademark bid", Washington Post/Chicago Tribune, Jul. 7).
Washington Post columnist Bob Samuelson chastises the U.S. Supreme Court majority for ducking the recent free-speech-for-business case (see Ted Frank's post of Jul. 1, as well as Feb. 13 and May 3-5, 2002). Sample: "Just about the last people you'd want to put in charge of the First Amendment are trial lawyers, whose business is suing large companies on any available pretext. ... What's occurring here is that trial lawyers are road-testing a new form of corporate shakedown. First, advocacy groups would attack a company or industry. Next, companies would face a dilemma: be silent and let the attacks stand, or respond and face an expensive and embarrassing suit. Finally, companies that ended up in court might face a daunting standard of proof -- not whether what they said was true, but whether it might be misleading." (Robert Samuelson, "A Tax on Free Speech", Jul. 9). Before the Court issued its ruling, interesting columns about the case also appeared from Jonathan Rauch ("Corporate Lying is Bad", National Journal/Reason.com, Jun. 9) and Dan Kennedy ("The Silent Swoosh", Boston Phoenix, May 2-8). Update Sept. 14: Nike settles case.
Kudos and thanks to Ted Frank for the excellent job he did as guest blogger over the last week. Regular posting should resume shortly, and watch for more experiments in guest blogging soon.
The National Law Journal also has coverage of a "groundbreaking" Judge Easterbrook decision out of the federal appellate court in Chicago, In re Bridgestone/Firestone Inc. Tires Products Liability Litigation, holding that a federal decision against the creation of a nationwide class precludes state courts from deciding to the contrary. (John Beisner of my law firm, O'Melveny & Myers, represented Ford Motor Company and argued for the defense.) The decision is important because it limits the ability of class action plaintiffs' attorneys to judge-shop; if a federal court denied the certification of a nationwide class, the same attorneys could go from state to state seeking a state court that would in a game of "heads I win, tails don't count." (Gary Young, "7th Circuit Limits State Court Certification of Class Actions," National Law Journal, July 8.)
Many thanks to Walter Olson for giving me the keys to the website for the week. I greatly enjoyed the experience.
Some states have changed laws to cap noneconomic damages--and, in some cases, limit the use of inspection records as evidence--in lawsuits against nursing homes. (Cherie Song, "States Move to Curb Nursing Home Suits," National Law Journal, July 8).
A federal jury in Chicago awarded $36 million ($8.3 million compensatory, the rest punitive) to the former client of class action plaintiffs' firm Ness, Motley for breach of contract and fiduciary duty. The law firm negotiated a settlement (over the objection of its clients, which it fired at the behest of the defendant) with a convicted felon with tens of millions in frozen assets that gave the firm $2 million in fees, but "next to no compensation" for the ostensible injured parties. (Ness, Motley has since broken up.) (Adam Liptak, "Big Litigation Firm Found to Have Acted Unethically," NY Times, July 4). The Manhattan Institute issued a press release and a study of the case last August.
Michael Fumento laments that a single study is being misconstrued to justify perverse lawsuits over anti-psychotic medication Zyprexa. (Michael Fumento, "Lawyers Exploiting the Mentally Ill," Scripps-Howard News Service, June 26).
Peter Nordberg and David Bernstein debate the study on Daubert discussed in this post. If I can take up Mr. Nordberg's challenge to identify problems with the SKAPP report, I'll just identify a handful that immediately came to mind as I read it. (This is long, so I've moved it off the main page. Click the link below.)
This is, mind you, nowhere near a systematic evaluation.
The complaint that Daubert sometimes results in the inappropriate exclusion of legitimate science is an ironic one. The fact that legal rules sometimes result in mistakes of application has been the argument of many a tort reformer against expansion of tort liability to address public policy issues better resolved in the other two branches of government. Courts make mistakes, and the more issues that come within the judicial system's ambit, the more mistakes that will be made. Cf. Frank H. Easterbrook, "The Limits of Antitrust," 63 Tex. L. Rev. 1 (1984).
The question should not be whether there are occasionally false negatives in the application of Daubert (there are), but whether the social cost of the false negatives (and, mind you, the false positives that still occur) when Daubert is used as a screening mechanism outweigh the social costs of a different set of mistaken decisions and different set of compliance and litigation costs under a different regime. The SKAPP report makes no effort to answer that question, and seems to simply assume that any false negatives are too many without any acknowledgement that there is a real burden to society from false positives.
As earlier discussed by Walter, a Manhattan appellate court has affirmed the dismissal of Attorney General Eliot Spitzer's state lawsuit against gun manufacturers. Spitzer had sued under a theory of "public nuisance." The opinion is now on-line and the court's language is interesting:
[P]laintiff would have us summarily ignore: [...]An identical federal suit filed by the NAACP is pending before Judge Jack Weinstein in Brooklyn. (Samuel Maull, "Appeals court affirms dismissal of state's lawsuit against gun makers," AP, June 24).2) the importance and fairness of considering such concepts as remoteness, duty, proximate cause and the significance of the indisputable intervention of unlawful and frequently violent acts of criminals — over whom defendants have absolutely no control — who actually, directly, and most often intentionally, cause the cited harm;
3) the significance and unfairness of holding defendants accountable even though their commercial activity is wholly lawful and currently heavily regulated, and that their products are non-defective; and
4) the plain fact that courts are the least suited, least equipped, and thus the least appropriate branch of government to regulate and micro-manage the manufacturing, marketing, distribution and sale of handguns.
Weinstein is perhaps best known for his work on the Agent Orange class action settlement, which the U.S. Supreme Court recently allowed to be reopened when it split 4-4 in its review of a Second Circuit opinion holding that the settlement did not preclude veterans from seeking additional damages. There are obvious implications, since now class action defendants risk losing the benefits of finality in the Second Circuit. (Tony Mauro, "Vets Win Chance At Agent Orange Damages," Legal Times, June 10).
(Full disclosure: My firm filed an amicus brief on behalf of the Product Liability Advisory Council in Dow Chemical v. Stephenson.)
You can never have too much information about fast food lawsuits department: The Center for Consumer Freedom is running humorous ads on news channels showing a lawyer cross-examining a Girl Scout for selling Girl Scout cookies. (Marguerite Higgins, "Food companies use humor as defense in ads," Washington Times, June 26). Thing is, plaintiffs' lawyers are immune to parody: John Banzhaf threatens to sue the Seattle school district if it agrees to renew a $400,000 contract with Coca-Cola for vending machines. (Deborah Bach, Seattle Post-Intelligencer, July 2).
A jury found that a plaintiff was not damaged by false promises a former Texaco salesman made (against corporate policy) in selling franchises, but decided that the fact of the promise entitled the plaintiff to $33.8 million in punitive damages. (Why $33.8 million? Because it was a percentage of the size of the defendant's net value. Strikes me as a punishment for being a successful business, rather than for wrongdoing. If Texaco had taken half of its net value and invested it in a failed fiber optics business, should punitive damages be half as much?) The coverage doesn't indicate if the promise was written or part of an oral sales pitch, but it does note that the plaintiff did not sue the salesman, who was fired after it was discovered he made such promises. (Matthew Haggman, "ChevronTexaco Subsidiary Hit With $33.8M Punitive Damages Verdict," Miami Daily Business Review, July 3). Update Dec. 2: award thrown out.
"I think food is the tobacco of the 21st century" says an aspiring plaintiffs' lawyer attending a secret strategy conference at Northeastern University. (Karen Robinson-Jacobs, "Lawyers Put Their Weight Behind Obesity Cases," LA Times, July 2 (via Appellateblog)). Other papers have reported on the conference (Marguerite Higgins, "Fast food next on the menu for lawyers," Washington Times, June 23; Jay Fitzgerald, "Lawyers in fat city," Boston Herald, June 21; Duane Freese, "Nutrition Irrelevant?", TechCentralStation, June 24).
The U.S. Chamber of Commerce released a study yesterday arguing that fast food is not the culprit for the nation's obesity (also via Bashman). News coverage on the study: Fox News; CNBC.
It's the tenth anniversary (plus four days) of the Daubert v. Merrill Dow Pharmaceuticals opinion that limited in federal trials the use of expert testimony that is not scientifically reliable. Peter Nordberg's Daubert on the Web is one of the more comprehensive sites on the web on any subject; he has started a blog that promises to be fascinating.
Along with recent Supreme Court jurisprudence on punitive damages in cases such as BMW v. Gore and the expansion of interlocutory review of class action certification, Daubert has been one of the few brakes on the expansion of tort liability in the last ten years. As my former Brandeis colleague and GMU Law professor David Bernstein points out, however, Daubert did not stop the use of junk science to extract billions from breast implant manufacturers, and now some of that money is being used to fund efforts to weaken Daubert.
The Loewen Group is a Canadian funeral home company that was the victim of a runaway Mississippi jury that held it liable for $500 million in damages in 1995 for ostensible antitrust damage to a local funeral home company worth less than $10 million. The company could not post the $625 million bond that was a prerequisite for appeal, and was forced to settle for $175 million. Loewen sued the US under NAFTA provisions prohibiting discrimination against foreign investors. The tribunal called the verdict a "disgrace," but held that it was not a violation of NAFTA.
Professor Volokh, of the Volokh Conspiracy, on the Nike v. Kasky case. Under a 4-3 California Supreme Court decision, Nike is potentially liable to any California citizen if its response to political speech criticizing Nike is deemed "misleading."
(Full disclosure: Walter Dellinger of my law firm filed a U.S. Supreme Court brief on behalf of Nike.)
DC sniper Lee Malvo shoplifted the rifle he used from a Tacoma store, which is now subject to a lawsuit, as is Bushmaster Firearms, the gun manufacturer that sold the rifle to the store. (And why not the coal miners that supplied the steel manufacturers that supplied Bushmaster Firearms?)
The first lawsuits against fatty-food sellers were justifiably the subject of parody, but a few months later, without plaintiffs having won a single case, a USA Today front-page article treats the idea of big damages awards as a near-inevitable outcome, quoting two plaintiffs' lawyers, and without a single quote from anyone suggesting that such lawsuits may not be good public policy. Such coverage has a tendency, of course, to be a self-fulfilling prophecy.
Famed plaintiffs' firm Milberg Weiss, rather than risk a motion for sanctions, settled a case and agreed never to sue Titan International again. The firm, the subject of a fawning New Yorker article a few months back, recently announced that it would split. Federal authorities in Los Angeles are investigating whether the firm paid shareholders to participate in lawsuits.
Greetings. My name is Ted Frank, and I'm honored to be your guest blogger for the week. I'm a former clerk for Judge Easterbrook and am currently practicing law as counsel in a Washington, D.C., firm, often on behalf of clients who are dealing with the types of lawsuits that Walter Olson has catalogued here for years.
Speaking of Judge Easterbrook, here is his opinion in McMahon v. Bunn-O-Matic, a classic variant of the plaintiff-who-spills-hot-coffee case.
I'll be on vacation for the next week. If all goes as planned, a guest blogger should be stepping in momentarily to fill the gap. An outstanding group of volunteers offered their services, and you should be seeing some of their names as guest bloggers over the coming months. See you next Wednesday.
The CBS show takes a look at the Jade Fields case from New Jersey, which we covered last July (Jul. 1-2, 2002; Aug. 22-23, 2001 and links from there). The show interviews an ultrasound specialist who "has testified as an expert witness in many wrongful birth cases for both doctors and patients" and who appears to doubt that the doctors' supposed inattention to danger signs was in fact malpractice. Also on camera is the girl's mother who insists that "Jade is the best thing that could have ever happened to us" but also says in the lawsuit that she would have aborted the girl in a moment had the extent of her disabilities been clear. The show gives the plaintiff's lawyer the last word (CBS News, "Is 'Wrongful Birth' Malpractice?", Jun. 23).
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.
