Coyote Blog

... but these are worse.  But for someone who runs a small business, not wildly surprising.  Employers who believe that abject carelessness and rule-breaking on the employee's part should result in no claim do not have sufficient experience with the system.  At this point, whatever its origins, workers comp is effectively no-fault bad outcomes insurance.  If a bad thing happens to the worker on the job, then it generally pays no matter what the fault or facts of the case.

Our problem tends to be that we get a whole heck of a lot of "injuries" in the 3-4 hours between when we fire someone and when they leave the property.

Via Overlawyered.

California legislation to make it a crime to use flat rather than fitted sheets on hotel room beds. Via Overlawyered.

Last week in the race around New England colleges I missed a milestone of sorts - Coyote Blog crossed over 5 million visits.  I say "of sorts" because with feed readers, many readers of the blog do not hit the visit counter.  In fact, with over 2,000 feed subscribers who check this feed each day, that equates to about 3/4 million visits a year that don't hit the counter.

Nevertheless, all these numbers, however flawed, are far higher than I ever thought I would reach here (way back on September 29, 2004).  Thanks for the support.

PS-  Here was that first scintillating post 6-1/2 years ago:

This blog will often touch on the insanity that is the current American tort system. I don’t think there is any greater threat to capitalism, due process, or democracy than the growing power of the litigation bar.

Via Overlawyered.com, which should be an essential part of your daily blog browsing, comes this story. Apparently, after being sued by Okaloosa County for making defective police cars, Ford refused to sell the county any more of this type car. The County sued again, this time to force Ford to sell it more cars of the type it is suing Ford for being defective:

One of Morris’ attorneys, Don Barrett, has said the sheriff firmly believes the Police Interceptors are defective but he wants to buy new ones to replace aging cars because seeking other vehicles would be more costly.

lol. Unfortunately, in the service business, it is legally more difficult to exclude customers from the premises. We have several well-known customers who come to our campgrounds (plus Wal-mart and any other private retail establishment) desperately hoping to slip and fall and sue. In a future post, I will tell the story of a Florida campground that is being sued by a visitor for sexual dysfunction after the visitor allegedly stepped on a nail in their facility.

Apparently the RIAA has demanded $75 trillion in damages from file sharing site Lime Wire.  Via Overlawyered.

Via Overlawyered, from here

Taiwan's Intellectual Property Office said it had disqualified Wu Chih-wei and asked him to return the medal and prize money he got for winning the "Protect Copyright" poster-design contest, after Wu admitted he had copied the design he submitted.

I am sure this will garner much sympathy from all of you

"[Attorney George Fleming] said he had worked too long and too hard for a lousy $41 million," said Jim Doyle, who left the firm after objecting to Fleming's unusual decision to include non-client expenses among those billed to clients.

Via Overlawyered.  Fleming is accused of padding his expenses in a class action settlement.

Via Overlawyered, from here:

Lisa jumped out of the plane with Robin Rohemo, her tandem partner, and that's when it got really thrilling - the main parachute failed to deploy and Lisa hurtled toward the ground, somersaulting in the air, terrified of imminent and certain death when she'd smash into the [ground] at 100 miles per hour.

Luckily for Lisa, Mr. Rohemo knew exactly what to do during this mid-air free fall. First, he tried to cut the failed main chute off. Failing that, he told Lisa he needed her to stand on his knees and hold on. Lisa's words: "So I am holding as tight as I possibly could standing on his knees as we are falling to our death and I just felt this tremendous pressure pull on my hand ... and I figured we were going to die ...." Rohemo was able to free up the back-up chute, he and Lisa floated down to safety and no one died that day.

Whew, what a thrill. Maybe Lisa should've paid extra for the additional thrill. Instead, because her third and fourth fingers were fractured during the fall, she lawyered up and sued SkyDive claiming that Rohemo - her savior - had wrongfully told her to hold tight to a dangerous area of the parachute he was trying to cut away and then never told her to let go at an appropriate time. This, she and her lawyer claimed, presented Lisa with an enhanced risk not assumed or inherent in a tandem jump.

I don't know enough about parachuting to understand if she should be ticked off her main chute was packed wrong or something, but since that is not the basis of the suit, I assume that was not the issue.  Nevertheless, I would be sending Mr. Rohemo a case of scotch every Christmas for the rest of his life.  Lisa is suing him.

Via Overlawyered:

The settlement discussed in this space July 17 "” in which lawyers nabbed more than $25 million in fees and expenses, while fewer than 100 consumers redeemed Ford coupons worth $37,500 "” was covered by the Associated Press last week, which stirred outrage in many quarters [Krauss/PoL, Greenfield, Cal Biz Lit]. As Cal Civil Justice notes, the settlement was purportedly on behalf of owners who suffered no rollover or other mishap. Instead, it sought damages for losses in the vehicle's resale value due to adverse publicity, a nicely circular theory, since the adverse publicity was in good measure propelled by various allies of the plaintiff's bar.

Via Overlawyered:

Sponsored by Congress' most senior member, Rep. John Dingell (D-Mich.), HR 759 amends the Federal Food, Drug and Cosmetic Act to include provisions governing food safety. The bill provides for an accreditation system for food facilities, and would require written food safety plans and hazard analyses for any facilities that manufacture, process, pack, transport or hold food in the United States.

It also calls for country of origin labeling and science-based minimum standards for harvesting fruits and vegetables, as well as establishing a risk-based inspection schedule for food facilities. "¦

The [Cornucopia] institute claims the preventative measures [on handling of food on farms] are designed with large-scale producers and processors in mind and "would likely put smaller and organic producers at an economic and competitive disadvantage."

You hear this all the time from proponents of certain regulations -- "even _____ corporation supports it."  GE supports global warming regulation.  Large health care companies support heath care regulation.  The list goes on forever.  That is because regulation always aids the large established companies over smaller companies and future upstart competitors.  Larger companies have the scale to spread compliance investments over larger sales volumes, and the political muscle to lobby Congress to tilt regulation in their favor (e.g. current cap-and-trade lobbying in Congress).  Regulation creates a barrier to entry for potential new competitors as well.

I hate to admit it, but regulation in my own business (which I neither sought nor supported) has killed off many of my smaller competitors and vastly improved our company's competitive position.  It is no accident that the list of the largest companies in heavily-regulated Europe nearly never change, decade after decade, whereas the American list has always seen substantial turnover.

A while back I wrote about racism vs. tattoos, in the context of a story that claimed black players had more fouls called against them than white players in the NBA

My sense is that we make snap decisions about other people based on a
wide range of physical attributes, including height, attractiveness,
clothing, tattoos, piercings as well as visible racial characteristics
(e.g. skin color) and race-related appearance choices (e.g. cornrows).
It would be interesting to see where skin color falls against these
other visible differentiators as a driver of third party decisions
(e.g. whether to call a foul).   My sense is that 60 years ago, skin
color would be factor #1 and all these others would be orders of
magnitude behind.  Today?  I don't know.  While skin color hasn't gone
away as an influencer, it may be falling into what we might call the
"background level", less than or equal to some of these other effects.
It would be interesting, for example, to make the same study on level
of visible tattooing and the effect on foul calls.  My sense is that
this might be of the same order of magnitude today as skin color in
affecting such snap decisions.

In a follow-up I posited that tattoos may be the new black.

Now, Via Overlawyered:

"Some San Antonio apartment complexes are refusing to rent to people with tattoos and body piercings."

Via Overlawyered:

Score another one for personal responsibility: 29-year old St. Louis
Cardinals pitcher Josh Hancock killed himself in April when he drove --
faster than the speed limit, drunk, on a cell phone, and not wearing a
seat belt -- into a tow truck stopped on the side of a road. Obviously,
we ought to blame... everyone except Josh Hancock for this. Three and a
half weeks after the accident, his father has filed suit
in St. Louis against: the restaurant where Hancock was drinking, the
manager of the restaurant, the tow truck driver, the towing company,
and (!) the driver of the stalled vehicle that the tow truck was
assisting, for having the temerity to get his car stuck on the side of
the road.

So far, he hasn't sued the Cardinals or Major League Baseball, but, while praising the team, his lawyer pointedly refused to rule out suing them.

Via Overlawyered:

They're doing it again in California: "State and federal authorities
have opened an investigation into a Norco housewife, alleging that her
vitriolic protests against a high-risk group home in her neighborhood
may constitute housing discrimination." Federal officials asked state
fair housing regulators to investigate Julie Waltz, 61, who had
protested plans to open a group house next to her home for
developmentally disabled residents; among those eligible to reside
there under state law would be persons deemed not competent to stand
trial on sex crime charges.

Yes, you heard that right.  She is being threatened with a housing discrimination charge by the government for exercising free speech on a public policy issue.

Via Overlawyered, from the nanny's at the British Medical Journal:

Clothes made in larger sizes should carry a tag with an obesity
helpline number, health specialists have suggested. Sweets and snacks
should not be permitted near checkouts, new roads should not be built
unless they include cycle lanes and food likely to make people fat
should be taxed, they say in a checklist of what we might "reasonably
do" to deal with obesity.

I know a number of larger folks who already get huge self-esteem hits everytime they shop for clothes.  I am sure they would love to see a tag that says "If you are trying this on, you are fat.  Get help" on their clothes.  Oh, and thanks for all the help with girls that have a tendency towards anorexia.  I am sure all this media and government obsession with body size and losing weight will be a big help (when I was younger, I had two acquaintances both die from complications associated with anorexia and bulimia).  What's next?  Special tags on small-size condoms saying, well, never mind.

Via Overlawyered, this is the hilarious account from a Doctor Hebert about finding out that he was suing Cisco.  He was a little non-plussed by this:

Did I want to sign up for the largesse, it inquired. It politely
offered me the option of declining, saying, "IF YOU DO NOT WISH TO BE
INCLUDED IN THE CLASS AND YOU DO NOT WISH TO PARTICIPATE IN THE
PROPOSED SETTLEMENT DESCRIBED IN THIS NOTICE, YOU MAY REQUEST TO BE
EXCLUDED." (The capitalization is theirs. I am not usually that
annoying.) Well, THANK GOD, I said. I can opt out of a lawsuit that was
filed in my name without my approval if I should have, well, you know,
scruples.

Except, as lawyers like to say, don't neglect to
read the next sentence. And the next, and the next, and the next, and
the next. Somewhere in there is the  gotcha. "TO DO SO, YOU MUST SUBMIT
A WRITTEN REQUEST FOR EXCLUSION THAT MUST BE RECEIVED ON OR BEFORE
OCTOBER 31, 2006."

All right, now. I got the letter on
November 13, 2006. Admittedly the U.S. Post Office is slow, but I'll
give them credit for getting a letter from the West Coast to
Mississippi in less than 14 days. Unfortunately, the letter was mass
mailed and thus bypassed the local post office. It bore no postmark. In
other words, I got the letter two weeks too late to opt out of the
lawsuit, and I had no postmark to prove it was intentionally mailed out
late to prevent me from refusing to participate. The old expiration
date trick. That was slick, Mssrs. Lerach, Coughlin, Stoia, Geller,
Rudman, Robbins, Levin, Papantonio, Thomas, Mitchell, Echsner, &
Proctor -- real slick.

He is even more non-plussed to learn that he is in line for a check for $0.90, while the lawyers are in for $23.9 million.  I feel his pain.  I, for example, have been informed on several occasions that Visa and Mastercard, among others, are being sued in my name, though I never engaged anyone to do so.

Update:  Another huge fee for the attorneys, 50-cent coupons for customers class action is in the midst of an ugly fight over attorney billing rates - ironically in a cosmetics lawsuit alleging overpricing.

Among the alleged abuses were
bills of $195 an hour for work by paralegals who were paid just $30,
claims that attorneys and paralegals worked 24-hour or even 72-hour
days, and charges of $90 an hour or more for cleaning desks and
filing....

                           
                           
                              

According
to records filed with the federal court, individuals at one legal group
representing the class, the Law Offices of John Burris in Oakland,
billed as much as 72 hours in a single day for document review and, in
dozens of instances, billed for 24-hour days.

Of course the attorneys had a strong rebuttal to these revelations:

The lawyers accused of overstating their hours and expenses responded
by strenuously objecting to Judge Armstrong about the public disclosure
of their billing records, which the attorneys said were confidential.

Via Overlawyered, one of my absolute favorite blogs, comes my favorite headline of the week, courtesy of KCRA in California:

Paraplegic Activist Leaps From Wheelchair, Runs From Police

That's classic.  Apparently, the person involved had defrauded numerous organizations with spurious ADA complaints under California's ridiculous sue-anyone-with-higher-net-worth-than-yours laws.

Police said Laura Lee Medley, who repeatedly filed claims and lawsuits
for noncompliance with the Americans with Disabilities Act, was a con
artist.

A San Bernardino County spokesman, David Wert, said
Medley had complained to police earlier that she was having medical
problems so she was taken to a hospital for treatment.

Wert said, "That's where the great miracle occurred."

Officers
said Medley, 35, leaped from her wheelchair and ran for freedom after
being placed under arrest by Las Vegas police. The barefoot woman was
caught after a brief pursuit.

According to authorities in
Southern California, Medley was never disabled but used her supposed
condition to file many medical claims and lawsuits. Her questionable
claims led to the arrest in Las Vegas.

The vast majority of my employees and many of my customers are over 60, so we try extra-hard to accommodate people with all kinds of disabilities.  That is why this type of fraud really burns me up.  Not once but twice we have killed incipient lawsuits when we have had customers who were claiming severe physical disabilities observed playing football or unloading a truck.  I have had one person I was interviewing for a job tell me that I had to hire him since he was disabled, because if I didn't choose him I would be discriminating against the handicapped (we chose a different candidate).

Update: More Unruh act silliness:

A Los Angeles psychologist who was denied a tote bag during a Mother's
Day giveaway at an Angel game is suing the baseball team, alleging sex
and age discrimination.

Michael Cohn's class-action claim in Orange County Superior Court
alleges that thousands of males and fans under 18 were "treated
unequally" at a "Family Sunday" promotion last May and are entitled to
$4,000 each in damages.

Via Overlawyered, is the incredible story of Shannon Peterson, who is being sued for taking a bath before work.  Really:

Many people find the sound of running water soothing and peaceful.

Not Marvin and Goldie Smith, who have sued their neighbor over her 5 a.m. baths.

The
couple, 83 and 78 respectively, live on the eighth floor of the Polo
Club Condominiums near the Cherry Creek Shopping Center. They claim the
water pipes they share with the woman below them vibrate so badly they
can't sleep through her early morning baths....

So the Smiths called their son, Sheldon, a
partner in the Holland and Hart law firm. He sent a letter, threatening
Peterson that her "intransigence ... and tortuous conduct have resulted
in incredible sleep deprivation for Mr. and Mrs. Smith. Your obstinacy
has ruled the day. That will now cease."

He then ordered Peterson to stop running water in her bathtub before 8 a.m....The Smiths sued Peterson just before Christmas, citing the "reckless and negligent use of her bathtub."

Unbelievable.

Via Overlawyered, comes this fascinating confession of one of the young "accusers" in the McMartin pre-school sex abuse prosecutions, one of several witch-hunts from a mercifully brief era of a national day care sex-abuse panic.  While certainly abuse occurs, as is made clear from recent Catholic Church revelations, prosecutors used the excuse of "protecting the children" to justify all kinds of abuses of the fact-finding process (something we should remember in the Patriot Act era).

The lawyers had all my stories written down and knew exactly what I had said
before. So I knew I would have to say those exact things again and not have
anything be different, otherwise they would know I was lying. I put a lot of
pressure on myself. At night in bed, I would think hard about things I had said
in the past and try to repeat only the things I knew I'd said before.

I
remember describing going to an airport and Ray taking us somewhere on an
airplane. Then I realized the parents would have known the kids were gone from
the school. I felt I'd screwed up and my lie had been caught"”I was busted! I was
so upset with myself! I remember breaking down and crying. I felt everyone knew
I was lying. But my parents said, "You're doing fine. Don't worry." And everyone
was saying how proud they were of me, not to worry.

I'm not saying
nothing happened to anyone else at the McMartin Pre-School. I can't say that"”I
can only speak for myself. Maybe some things did happen. Maybe some kids made up
stories about things that didn't really happen, and eventually started believing
they were telling the truth. Maybe some got scared that the teachers would get
their families because they were lying. But I never forgot I was lying.

There is much more in the article, demonstrating how prosecutors manipulated children to get prosecutions. 

This topic has resonance with me because I sat on the jury of such a case around 1992.  Earlier sex-abuse prosecutions were starting to look suspicious, but there was still a lot of incentive for prosecutors to push high-profile cases (after all, Janet Reno would soon become AG for the US, largely on the strength of a number of well publicized and in retrospect very questionable such prosecutions).  By 1992, though, defense lawyers had caught up and were better at highlighting the egregious tactics used by prosecutors to coax stories out of children.  Many of the tactics we saw in our trial were identical to those recounted in this article.  There was even an eerie parallel to this recent Vioxx case, as the initial (3rd party) accuser who first reported that the victim was being abused seemed more motivated by getting on Oprah than getting her facts correct.

Update:  Neo-Libertarian has the details on the Janet Reno prosecutions I mentioned in passing.  Here is the PBS story on "the Miami method" and several of Reno's unethical abuse prosecutions.

This is something our company has encountered a couple of times now:  There is apparently danger nowadays in posting warning signs.  Apparently, courts and juries are taking the position that by posting any warning at all, you are communicating to the public that you are taking on the task of warning them about any possible danger.  Then, when someone gets hurt by something you did not warn them about, they can argue that you are liable. Via Overlawyered:

Putting up signs warning visitors of the dangerous rip currents off New Jersey's
Long Beach might seem like an obvious step. "However, Long Beach Township
Attorney Richard Shackleton said there are liability issues to consider.
According to the law, the town does not have to warn people about natural
conditions, and if Long Beach put up a sign and a jury found its warnings to be
inadequate, the town could possibly be found liable for a drowning or injury.
Having no signs, he said, reduces the risk of being sued."

We have similarly had our attorneys and/or insurance inspectors recommend we take down a number of warning signs for this reason.  I have no idea how this outcome can be in the public interest.

Like a smoker trying to quit for the twenty-seventh time, I have tried really, really hard to limit the number tort-related rants in my blog lately.  I sometimes go for weeks without falling off the wagon,and then something comes along that is so insane, I can't resist.

Via Overlawyered.com comes this site from attorney Lewis Laska dedicated to outlining all the ways people too bored or incompetent to make money the old fashion way can try to support their lifestyles by suing Walmart.  Don't miss this page, where the attorney will sell you packets of information for how to sue for various occurrences, such as:

Parking Lots- Uneven Surface and Protrusions (16 items, $135)

Parking Lots- Improper Parking Lot Design or Marking (11 items, $90)

Entering the Store - Entranceway Floors and Floormats (21 items, $160)

Entering the Store - Doors and Doorways - Tracked-in Water (32 items,
$200)

Aisle Ways - In-Store Consumable Food on Floor (18 items, $160)

Aisle Ways - Out-of-Store Consumable Food on Floor (14 items, $120)

Aisle Ways - Unknown Substance on Floor (59 items, $200)

Aisle Ways - Packaged Product on Floor (14 items, $110)

Aisle Ways - Unpackaged Product on Floor (13 items, $100)

Merchandise - Merchandise Protruding (1 item, $15)

Shelving and Racks and Displays - Vegetable Produce Displays (1 item,
$15)

Shelving and Racks and Displays - Water/Condensation From
Vegetable/Refrigeration/Freezer Displays (6 items, $55)

Shopping Carts - Overloaded (4 items, $45)

Shopping Carts - Defective (4 items, $45)

This is only a very short sample of the whole list.  I especially like the packaged product on floor.  Get your friend to drop a box of Wheaties on the floor, and then you follow him and sue.  And how the heck is Wal-Mart at fault if you overload your own shopping cart?  Anyway, I am going to order one to see what I get.

By the way, I especially liked this whopper, I guess because he is trying to portray himself as the brave man taking on huge odds:

Most lawyers are not interested in filing suits against Wal-Mart.
The company is reluctant to settle cases promptly and fairly and almost
seems eager to take cases to trial. One of the goals of the Wal-Mart Litigation
Project is to identify lawyers who are ready, willing and able to sue the
company where a case has merit.

I hardly know where to start.  First, if lawyers are so reluctant to sue Wal-Mart, why does Wal-Mart have like 20,000 suits pending against it? (note the numbers in this article, and it is 4 years old) Second, you gotta love the part about the attorney put out because Wal-Mart won't play the part of the victim like other companies and actually demands their right to a trial.  In this one statement, you see exactly how the plaintiff's bar works - they don't really want to go to a trial.  They want to force a fast settlement that requires little of their own time and move on with their 30+% of the take.

Yesterday I mentioned employment at will in this post about police officers who were fired for assaulting a handcuffed man and who successfully sued for wrongful termination.

Via George's Employment Blawg comes this article on employment at will and things a small business should consider to reduce the possibility that fired employees will sue:

Here's where things get tricky. In between employment at will and the law is a whole mess of claims, counterclaims, lawsuits, disputations and confusion. It's enough to make anybody scratch their head.

We have had several instances where employees have threatened legal action over termination.  I have observed at least three reasons for this:

• Employees sometimes have a skewed view of the termination process, thinking that a company must hold to some kind of courtroom "beyond a reasonable doubt" standard in amassing reasons for termination.
• The most inept employees never seem to know that they are inept
• Some employees are far more adept at working the system than they are at their jobs.

We do several things to help make things go smoother:

• Unless the violation was outrageous, where we fire on the spot, we try to give employees written warnings and coaching before they get terminated
• Every new employee signs a 60/90 day probationary period letter.  If there are problems, they almost always occur in the probation period -- ie they turn up quickly -- and the probationary period gives us more leeway to quickly terminate.  Update:  This article says why this policy can be a mistake, or at least you have to be careful with it.  This is less of a problem for us since most of our employees only work a 5 month season anyway.
• We don't give references.  I have said that this makes me feel guilty, but negative references about fired employees are a big source of litigation, and frankly, I am sorry to admit, the treat of wrongful termination suit is greatly reduced if the ex-employee finds a good job somewhere else.  Kind of the business version of hot potato.
• Being a seasonal business saves us.  For many employee problems, we limp along until the end of the season when we can terminate the person for lack of work, then we make sure not to rehire them in the spring.

Update: Via Overlawyered, this story in the New York Post (gotta love the headlines) about a teacher fired 17 years ago and still filing suits:

But the Clifton, N.J., instructor never got over it. Instead, he has filed 15 lawsuits in Manhattan federal court and three others in Brooklyn and New Jersey courts, seeking reinstatement and millions of dollars in damages.

Each lawsuit has been tossed out as meritless. But a defiant Malley hasn't gotten the message or doesn't care.

This blog will often touch on the insanity that is the current American tort system. I don't think there is any greater threat to capitalism, due process, or democracy than the growing power of the litigation bar.

Via Overlawyered.com, which should be an essential part of your daily blog browsing, comes this story. Apparently, after being sued by Okaloosa County for making defective police cars, Ford refused to sell the county any more of this type car. The County sued again, this time to force Ford to sell it more cars of the type it is suing Ford for being defective:

One of Morris' attorneys, Don Barrett, has said the sheriff firmly believes the Police Interceptors are defective but he wants to buy new ones to replace aging cars because seeking other vehicles would be more costly.

lol. Unfortunately, in the service business, it is legally more difficult to exclude customers from the premises. We have several well-known customers who come to our campgrounds (plus Wal-mart and any other private retail establishment) desperately hoping to slip and fall and sue. In a future post, I will tell the story of a Florida campground that is being sued by a visitor for sexual dysfunction after the visitor allegedly stepped on a nail in their facility.