July 15 -- Honey,
you've got mail. Some Floridians are learning
about their impending divorces by opening
their mail to find "Dear prospective client" brochures from local divorce
lawyers. The phenomenon can arise when attorneys solicit would-be
clients before a departing spouse has served them with papers.
The U.S. Supreme Court granted constitutional protection
to some forms of attorney solicitation
back in the 1970s, and it has since become an ever-more-systematic business.
Private services compile names from daily divorce filings and sell them
to lawyers, who then try to beat competitors to the punch by getting brochures
to prospects as soon as possible, many hiring private delivery services.
"These things are hitting the mailboxes of the respondents before they
even know their spouse has officially filed," said Warren Wilson, a Clearwater
lawyer who's trying to get the state bar's ethical rules changed to curb
Wilson says one man returned from his mother's funeral
in South America to learn from three lawyers' letters in his mailbox that
his wife had left him. Aside from inability to reach the other party,
service of process can be delayed for various other reasons, including
holidays and vacations, tactical or prudential reasons, or perhaps even
second thoughts about whether to go through with the action. In a
case that happened this summer, Wilson says, a Clearwater woman filed for
divorce but did not serve the papers at once, waiting for family members
to fly in to protect her. Before that could happen, a lawyer's flyer
reached her husband, who came to the woman's house and beat her.
Florida lawyers must observe a 30-day waiting period before
soliciting accident victims, but no such rule applies in matrimonial cases,
a situation Wilson would like to change. (Associated Press and Canada's
July 14 -- Do
as we say, please. "We have been so
focused here in New Orleans on getting guns off the street and protecting
our citizens," declared Mayor Marc Morial in making his city the first
to sign up in the trial lawyer campaign to
sue gun makers. Which makes it rather ironic, as Jake Tapper
Salon yesterday, that one of the leading sources of guns on the resale
market is none other than the city of New Orleans. In what may be
the largest deal of its kind ever to happen in the U.S., Big Easy's city
hall recently helped itself to a nice budgetary windfall by recycling for
street use, through an Indiana broker, some 7,300 guns, most confiscated
from lawbreakers. They include TEC-9s, AK-47s, an Uzi and various
other semi-automatics whose importation and manufacture the U.S. Congress
banned in 1994.
New Orleans's suit demands that gunmakers equip their
wares with child-proofing and safety locks. But it attached no such
condition to the resale of the guns in its own inventory, only
two of which had locks among the thousands it shipped. Nor did
it require that the guns be resold only to other police departments, a
financially unwelcome stipulation since weapons may fetch only half as
much on the market when that particular string is attached.
Other localities now suing gun makers while profiting
from gun swaps, often of used police weapons as distinct from confiscated
guns, include Boston, Detroit and Alameda County, Calif. "In essence,
these cities served as gun distributors themselves," writes Tapper.
Sometimes cities have arranged deals through the very manufacturers they're
now suing, such as Glock. Boston is charging gun sellers on a newly
minted legal theory that they displayed "willful blindness" to what happened
after guns left their hands, but itself attached no strings to resale when
rid of more than 3,000 .38s.
Another of the novel legal theories holds it unconscionable
for manufacturers to cater to the full sales demand of shops located in
gun-friendly states and suburbs when they know a certain percentage of
the merchandise will wind up in the hands of city residents. Morial
has defended New Orleans's gun-dumping on the grounds that the city required
that the weapons not be immediately resold in Louisiana ("not in my bayou",
as Tapper puts it, pointing out that it's apparently fine with Morial if
guns flood into any city outside his own state). But predictably,
not long after an initial shipment to Texas, some of the guns in the deal
began showing up at New Orleans shops.
Meanwhile, trial lawyers have recruited Indian tribes
to sue tobacco companies even though the exemption of reservations from
state taxes has long made cigarette sales a huge money-maker for many tribes.
Albuquerque trial lawyer Turner Branch, who had signed up 15 tribes and
was negotiating to represent 50 more, conceded to the Rocky Mountain
News in March (link now dead) that some of his prospective clients
themselves numbered among tobacco sellers but said it was "terrible they
got put in that position", which makes running a tax-free smoke shop sound
like something that could descend like hail on any of us on the wrong day.
(Coming soon: they forced us to run casinos.) It will keep happening
so long as the trial lawyers can keep getting
laws changed retroactively.
July 13 -- Puff,
the magic fees. The private lawyers
representing the state of Wisconsin in the tobacco wars initially demanded
$847 million in fees, then agreed to accept $75 million. (Well, close
enough.) Then they fought to prevent public disclosure of the billing
records on which their fees were based, poignantly citing "ethical issues".
Three newspapers went to court to pry open the informational clamshell,
and the state attorney general's office finally released a 900-page stack
of records yesterday, with results reported in this
morning's Milwaukee Journal-Sentinel.
The lawyers now claim to have spent 26,284 hours on the
case. Taking this claim for a moment at face value, it would indicate
that their initial fee demand worked out to an average rate exceeding $32,000
per hour, and that even after backing off on that demand they will still
be making fees of $2,853 an hour. (The law firms involved are Habush,
Habush, Davis and Rottier of Milwaukee; Brennan, Steil, Basting and MacDougall
of Janesville; and Whyte Hirschboeck Dudek of Milwaukee, none of which
returned the Journal-Sentinel's calls for comment.)
How many of these billable hours were reasonable and necessary?
They include time spent purportedly by lawyers on matters more often handled
by office administrators, such as setting up bank accounts and securing
office space, furniture and parking. What about time spent on legal
issues? The artful structure of the Medicaid suits makes it hard
to know how much legal research was really needed for any individual state's
suit; lawyers representing a few states like Minnesota could do much of
the heavy lifting on which other states' lawyers could then piggyback.
At any rate, the Wisconsin lawyers' own accounting includes ample amounts
of time spent on fee negotiations themselves; on working the press and
scoping out the Governor and other political players; and in preparing
a constitutional challenge to proposed legislation that would curb their
In addition, the lawyers billed $2,037,668.45 in reimbursable
expenses. This included $7,818.80 for a chartered plane to fly attorney
Robert L. Habush, former president of the Association of Trial Lawyers
of America, roundtrip from Florida to Washington (coach fare would have
been $906), $851.50 for roundtrip limo service to whisk Habush from Milwaukee
to Madison and back on May 5, 1997 (among other limo bills for trips between
those cities), and $800.75 for New York City limos during a day of fee
The Ashland Press in northern Wisconsin editorially
pointed out in April that the median household income in its neck of
the woods ran at $20,000 in 1990, which meant the lawyers had demanded
as much for an hour of work as the typical family made in a year.
(The state, meanwhile, had requested $209 an hour for its own lawyers.)
A state bar report claims the average Wisconsin lawyer makes $44,000 a
year, corresponding to about an hour and a half of the tobacco lawyers'
time as per their initial demand and 15 and a half hours (potentially,
one very long day's work) under the award they settled for.
Tobacco fees have already become a hot political topic
in other states including Massachusetts (link now dead), where Gov. Paul
Cellucci has called the local fee request "obscene", and
where cozy fee dealings have been referred to prosecutors for possible
July 12 -- Loser-pays
endorsed by Martina. "The loser of a lawsuit
should pay the legal fees," writes Martina Navratilova. "These days,
as soon as a person feels slighted or injured (physically or emotionally),
they look for someone to sue....The hope is not to win, but for the quick
$50,000 -- because it's cheaper to settle than to fight." The tennis
pro's comments are among the highlights of a new paperback entitled 250
Ways To Make America Better, compiled by Carolyn Mackler and the
editors of George magazine (Villard,
Not only do costs and insurance rates go up when targets
have to settle, Navratilova points out, but "prohibitive rules increase,
and freedom is diminished. Freedom used to mean that one is free
to achieve, to dream, to aspire, to think -- free to do what is right.
By assigning blame elsewhere, people are taking our freedom away."
There's more, all of it eloquent, in the great athlete's contribution (which
is numbered #9 of the 250 "ways to make America better"). Moreover,
loser-pays is also the first reform proposed by musician Ice T in his entry
(#41). "Let them pay the money, and they'll leave you alone."
Your editor's entry in the volume is "#98: Abolish the Peremptory Challenge".
Speaking of jury selection, your editor's thoughts on
the trial that led to last Wednesday's Miami cigarette verdict appear as
today's "Rule of Law" column in the Wall Street Journal (online subscription
required). Readers of Overlawyered.com had a chance to see much of
this material first (see entries for July 4 and July
July 11 -- Thought
for the day. From American Lawyer's symposium
last November on the international practice of law: "It is very sobering
to me, as an American, and someone who actually believes in our system,
to see foreign companies say over and over that the one thing they won't
put in their contracts is a clause that this is going to be governed by
American law or be subject to an American jurisdiction. It makes
one wonder whether we are really the most sophisticated commercial country
in the world or a banana republic when you get major worldwide corporations
doing that. I think it is a sobering issue for the American judicial system."
-- Robert Joffe, deputy presiding partner, Cravath, Swaine
July 10 -- In L.A.,
redesigning the Chevy. More details have
begun to emerge about yesterday's $4.9 billion Los Angeles jury verdict
against General Motors to six people severely burned in a crash of their
1979 Chevrolet Malibu. A drunk driver plowed into Patricia Anderson's
car from behind at a red light at a speed estimated by GM at 70 mph and
by plaintiffs at 50 mph; the gas tank caught fire. The plaintiffs
argued that it was unconscionable for GM to place the fuel tank 11 inches
forward from the rear bumper when an earlier design had placed it more
than twenty inches forward. Of course other gas tank placements,
while reducing the risk from rear-end impacts, tend to increase the risk
from other types of impacts, such as those from the side -- and in so doing
put the fire source closer to the passenger compartment. Yet
according to GM lawyer Richard Shapiro, quoted in the New York Times (link
now gone), Judge Ernest Williams of L.A. County Superior Court barred the
company from introducing into evidence crash test data showing that the
plaintiffs' proffered alternative design was in fact less safe.
GM's Shapiro said Judge Williams also barred the company
from introducing data on the actual safety history of the vehicle, which
has now been on the road for twenty years, long enough for a very full
picture to emerge of its overall performance in crashes. In those
twenty years, the National Highway Traffic Safety Administration has apparently
never deemed the location of the Malibu's fuel system to be a problem.
In the controversy a few years back over the placement of gas tanks on
the side of full-size GM trucks, plaintiffs' lawyers managed to divert
attention from the fact that nationwide accident data showed the trucks
to be substantially safer in collisions than the average vehicle on the
road, a topic your editor wrote
up at the time for the Wall Street Journal.
One reaction to the news that a 1979 Malibu can be hit
from behind at a differential speed of (possibly) 70 mph and have all six
of its passengers survive is to wonder whether they still build 'em that
sturdy anymore -- especially considering the mandated fuel economy rules
which have forced automakers to lighten up cars structurally since then.
(Your editor is quoted in this morning's AP business story as saying,
with respect to vehicles that can withstand being rear-ended at 70 mph,
is a word for that kind of car: a tank.'')(Sacramento Bee).
For those who are still goggling at the record $4.9 billion
sum that the jury plucked from the air (with trial lawyer assistance) as
a suitable damage figure -- $107 million was compensatory, the rest punitive
-- here are some comparisons. A quick flip through the World
Almanac reveals that $4.9 billion exceeds the gross domestic product of
a long list of United Nations member countries (I stopped counting after
two dozen). In fact, you could roll together the GDPs of the following
eleven UN member states and still not get up to $4.9 billion: Bosnia-Herzegovina,
Grenada, Comoros, Vanuatu, St. Kitts and Nevis, St. Vincent and the Grenadines,
Micronesia, Dominica, Palau, Marshall Islands, and San Marino.
A crowning outrage: GM's lawyer said the judge had also
refused to allow the jury to hear evidence that the other car's driver
had been drunk and went to jail. News stories have still not
named the drunk driver. (see update,
August 27, and Overlawyered.com's page
on auto-safety litigation).
July 9-11 -- Overlawyered.com's
first award. We're
happy to be named today's Conservative
Site of the Day, an
honor given out by Steve Martinovich's Enter Stage Right zine. We've
discovered a lot of interesting web resources by browsing ESR's archive
of past Sites of the Day, including the Unofficial
P.G. O'Rourke Page, the Critiques
of Animal Rights page, the National
Anxiety Center and Forfeiture Endangers
July 9 -- Be sensitive
to Fluffy, or else. The Seattle Times reported
in April that the owner of a small consignment clothing shop in the
city's Wallingford neighborhood has been forced to pay more than $650 and
undergo sensitivity training because she refused to let a woman bring her
dog into the store. Last November, Chaya Amiad entered Sharon Kempler-Jones's
Gypsy Trader shop with a small, shaggy dog on a leash and was told she
had to leave it outside. "She became very upset," recalled the store
owner, who said the rule made sense because dog dander and clean clothing
don't mix. "She said, 'Well, this dog can go anywhere, and you are
going to hear from my attorney.'" Sure enough, within days a letter
arrived from the Seattle Office for Human Rights charging Kempler-Jones
with denying a disabled person access to her business.
Disabled? Amiad wasn't deaf or blind, nor did she
display any other visible handicap. Instead, it turned out that she
was "emotionally dependent" on the dog. She even produced a note
in which her psychologist assured the human rights office that the dog
"has been privately trained to assist Ms. Amiad with cognitive disorientation
and confusion" and that without this canine companionship "Ms. Amiad would
probably become housebound and highly dependent." And that was enough
for them to rule that Kempler-Jones had committed disability discrimination
-- never mind that she had no way to know Amiad's psychiatric status at
the time. She was ordered to pay a fine and submit to sensitivity
training, one element of which presumably consisted of writing fifty times
on a blackboard: if someone asking for special treatment claims to be disabled,
better take their word for it.
A few years back the Wall Street Journal's editorialists
reported on a case where the San Diego Zoo was targeted with disability-bias
charges because it declined to let service dogs accompany visitors into
exhibits where the resident animals might by instinct become agitated upon
seeing even a well-behaved dog. The zoo had offered to provide individual
human guides instead, which didn't satisfy disabled-rights advocates.
(The WSJ piece is not online to nonsubscribers, but you can read disabled-rights
advocates' side of the story). An online
brochure from the Association of the Bar of the City of New York explains
that business owners "almost never" have the right to decide for themselves
whether to admit a service animal. It also mentions New York's potential
$50,000 fines (aside from lawsuit damages) for first violators, and notes
that when federal, state and local laws are in conflict, whichever is most
favorable to the disabled complainant prevails.
July 8 -- Personal
responsibility takes a vacation in Miami. Most observers
are betting yesterday's jury verdict against tobacco companies will be
overturned on the issue of class certification. In the mean time,
here are some preliminary tidbits that indicate how such cases get tried
these days before friendly judges. At jury selection last summer,
prospective jurors were quizzed on their reading habits and views on seemingly
unrelated issues like gun control. Nine of the first twelve prospective
jurors got purged,
mostly for holding views considered prejudiced against the plaintiffs --
apparently typified by a former smoker of three decades who said "I just
think people are and have been well aware of the detriments of smoking...To
come back after the fact, I find that somewhat ridiculous." People
with that sort of "bias", apparently, mustn't be allowed to serve on juries.
(Daytona Beach News-Journal trial coverage). Six jurors remained.
Through the proceedings, plaintiff's attorney Stanley Rosenblatt packed
the courtroom with attendees wheezing loudly, with portable oxygen
tanks and mechanical voice boxes (CNN) -- though, since individuals' state
of health was not at issue in this round, defense attorneys had no way
to question any of these spectators to establish whether they were even
members of the class. Nor had they any better luck in objecting to
what they said was inflammatory race-baiting on the stand by a plaintiff's
expert, Dr. Alan Blum of Doctors Ought to Care, on the subject of ethnically
targeted marketing (race wasn't supposed to be an issue in the case).
Might the jurors have been improperly influenced by ads they saw over
the course of the trial? Plaintiff's attorney Rosenblatt said yes,
raising two rounds of objections because the defendants did not suspend
advertising in South Florida markets during the year-long proceedings.
Were these, perhaps, "issue ads" promoting the companies' position on liability
matters? No; one was a product ad for the introduction of a new brand,
Kool Natural Lights, while the other was a national anti-youth-smoking
campaign (according to Rosenblatt, the buying of ads in 49 unnecessary
states in order to reach his juror pool in one merely proved
how "clever" a ploy it was).
Circuit Judge Robert Kaye expressed concern about the Kool ad (it "raises
one's eyebrows") -- mustn't have jurors being manipulated, after all.
Yet he dismissed
defendant objections over an incendiary anti-tobacco-company ad that
ran only in Florida -- and during the Super Bowl. Conveniently purchased
by the state government with its tobacco settlement booty, the ad depicted
the testimony of cigarette executives being interrupted by a canned audience
laugh track -- nothing anyone might find manipulative while a trial was
in progress. Several jurors admitted they were watching the game
when the state ad came on.
In their earlier tobacco lawsuit, a secondhand smoke class action, Stanley
Rosenblatt and wife Susan cut a deal with tobacco defendants which set
aside $300 million for a newly formed charitable research group, $0.00
for the members of the class of flight attendants that the Rosenblatts
were supposedly representing, and $46 million in legal fees for guess who.
by Public Citizen's Alan Morrison charged that this "gargantuan" fee
sum "appears to be grossly excessive" and said the alleged settlement "violates
fundamental tenets of fairness and adequate representation".
July 7 -- A
Civil Action II? Trial lawyers had high hopes the
John Travolta movie A Civil
Action would ignite public anger about the way minute quantities
of chemicals in the environment supposedly
cause everything from childhood leukemia to depression and poor reading
scores -- a near-limitless source of potential litigation, if true.
That didn't happen, partly because of thoughtful coverage in places like
the New Yorker (Atul Gawande, "The Cancer-Cluster Myth", February 8, 1999,
not online, summarized at Dartmouth's
News) and New York Times (Gina Kolata, "Probing Disease Clusters: Easier
to Spot Than Prove, January 31, 1999, reprinted,
U. Fla.). "Over and over again," Kolata reported, scientists
have come up empty handed in finding anything more than statistical artifacts
in such clusters. "Huge amounts of money" have gone into trying to
link clusters to low-dose chemical exposure, says Harvard statistician
James Robins, yet "nothing has come of it."
The Civil Action film turned in only a so-so
box office performance, but Hollywood doesn't give up easily. Now
the L.A. Times is reporting (link now dead) that shooting has begun in
Ventura on a Julia Roberts vehicle, provisionally titled "Erin Brockovich,"
about a real-life legal secretary (Roberts) working for a personal-injury
lawyer (Albert Finney) who stumbles onto a case where children in a small
town are sick and organizes a successful lawsuit against Pacific Gas &
Electric, whose pollution is said to be responsible. Almost guaranteeing
attention to the project is that Roberts's salary for doing the film is
$20 million, said to be a record for a female star.
Your editor's critiques of A Civil Action in both its book and movie
form, along with a lot of other material about the underlying case, are
to be found at his Woburn
July 6 -- What
a recommendation. Considering that not long ago practically
everything about the
O.J. Simpson case was big news, it's surprising how little discussion
there's been of this spring's announcement that the famed non-murderer
has agreed to do television ads for -- yes, it sounds like a bad joke,
but it's true -- a lawyers' referral group. (AP story in Fort
A spokesman for Justice Media, a 1-800-number marketing service, says the
ads will be aimed at the minority community.
Nicole Brown Simpson's sister Denise said she was "appalled" (WCCO),
the California state bar said it wanted to look into the newly formed referral
Diego Daily Transcript), and the New York Daily News's Juan Gonzalez
more details about David Lee, the attorney "friend" who persuaded Simpson
to do the ads. (A big New York City personal injury operator and
protégé of the famed Harry Lipsig, Lee has been dogged by
client complaints and just finished a two-year bar suspension).
"The Simpson ad brings to mind the many reasons why so many lawyers
objected for so many years to the idea of lawyers advertising on television,"
observes the Chicago Tribune's Clarence
Page (link may be dead). "They were afraid of something just like this,
that the most brazenly greedy and cynical face of the legal world would
be broadcast daily through the media."
July 5 -- This
time, bombing the taxpayer. "Lawyers Plan Compensation Claims
in Tanzania Bombing", reports MS/NBC (link now gone). Simultaneous
attacks last August on the American embassies in Nairobi, Kenya and Dar
Es Salaam, Tanzania killed more than 200 people and injured more than 5,000.
Guess who soon arrived on a mission of mercy? American lawyers, of
course, including the California firms of John Burris; Sterns & Walker;
and Herron & Herron, to claim negligence by the American government,
which was of course the terrorists' target. U.S. Embassy spokesperson
Lisbeth Keefe in Dar es Salaam "expressed dismay" at plans for such a suit:
''We were victims of this bombing, too.''
What's next? Probably a long wrangle in which the American trial
lawyers, in their own inimitable display of patriotism, feed the African
press a steady diet of news leads making the U.S. government look as bad
as possible, leading to a settlement sticking it to American taxpayers.
In short, a second victory for the terrorists. The best coverage
ran in U.S. News in March, "Lawyers
Mop Up After Embassy Bombing", which reported that Burris, an Oakland-based
civil rights lawyer who's defended basketball bad guy Latrell Sprewell,
stands to collect one-third of any settlement received by the more than
2,000 Kenyan clients he's signed up, though contingency fees for lawyers
are illegal in Kenya as in most countries. The secret is to file
the suits in the U.S.
July 4 -- "A
facto fourth branch of government." Today we celebrate the
American founding with its blueprint for a government of separated and
sharply limited powers. Last month's fascinating American Lawyer
on the origins
of the firearms litigation reported that prominent trial lawyer Wendell
Gauthier talked his colleagues into suing gunmakers, even though they weren't
deep pockets, because he argued the suit "fit with Gauthier's notion of
the plaintiffs bar as a de facto fourth branch of government, one
that achieved regulation through litigation where legislation failed".
Yes, some litigators now see themselves as a de facto fourth branch
of government -- one that pays a whole lot better than the other three,
isn't subject to the disclosure rules and blind trusts we expect of Presidents,
Senators and Chief Justices, does its unaccountable work behind the closed
doors of settlement rooms from which the public is excluded, and, best
of all, doesn't face those pesky distractions known as "elections".
Enjoy the Fourth anyway.
July 3 -- "Anti-democratic,
wrong, a feel-good solution." The Boston Phoenix favors gun control,
but it says city firearms lawsuits are "an
end run around the legislative process". That puts it in line
with the Boston Globe (January 19), the Seattle
Times, the Spokane
Spokesman-Review ("a cynical grab for undeserved money"), and other
UCLA law professor Eugene
Volokh has just compiled a valuable list of knowledgeable law professors
skeptical of the city gun cases
and firearms torts generally.
This is another issue on which the people at Reason magazine have put together
an excellent webguide ("Suing
Gun Makers"). The National Center for Policy Analysis weighs
in with a report, "Suing
Gun Manufacturers: Hazardous to Our Health". Gun enthusiasts
have put up a number of sites of which one of the most informative is straightforwardly
David Codrea expresses the sentiments of many gun owners about much-hyped
guns" and "child-proof locks".
July 2 -- Never
say you're sorry. The breast implant fiasco has brought home
the lesson that our legal system really is capable of extracting billions
of dollars on a completely spurious scientific theory, bankrupting a respected
company, and then not even saying "I'm sorry". Reason magazine's
new roundup is the best
place to start for an overview of this disaster. The text of the
National Institute of Medicine report refuting the lawyers' claims is
Charles Krauthammer, writing in the Washington Post ("Class-Action Extortion";
link now dead), quoted George Mason law professor David Bernstein: "It
would have been nice to have had this [study] seven billion dollars ago."
Your editor made similar points when he
Marcia Angell's powerful book, Science on Trial, in 1996. Prof. Bernstein
runs a highly informative Implant
Litigation Home Page. The classic journalistic treatment is Joseph
Nocera's 1995 Fortune article, "Fatal Litigation" (link now dead).
One reason reform is difficult is that the trial lawyers are among the
best organized political forces in the country. The Civil Justice
Association of California issues periodic reports on the millions
that trial lawyers have funneled into campaigns in that state.
July 1, 1999 -- Overlawyered.com
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