Oh, What A Year It Was
by John Browning    Thu, Dec 29, 2011, 06:55 am

As 2011 draws to a close, I would like to look back at some of the legal system’s less than shining moments during the year.  For starters, let’s begin with one of my favorite subjects—the “benchslap.”  For the uninitiated, a “benchslap” is when a judge delivers some stinging criticism, usually directed at one of the parties, their lawyers, or a position taken by either of the above.  This time, however, the “Tell Us How You Really Feel” award goes to U.S. Supreme Court Justice Samuel Alito for a benchslap directed at some fellow federal appellate judges.  In a speech at Rutgers School of Law (Newark), Justice Alito bemoaned the poor quality of judicial opinions from the U.S. Court of Appeals for the Ninth Circuit, saying:

          “If Learned Hand’s opinions are like the products of a bespoke tailor, the opinions coming out of the Ninth Circuit are like the products of a factory that is staffed by machines and menial workers who are overseen from afar by a handful of overworked managers.”


The “It Couldn’t Happen To a Nicer Guy” honor goes to the Steven J. Baum law firm, a New York foreclosure “mill” that—according to one legal analyst—filed more foreclosure proceedings against New York homeowners than any other lawyer in state history.  Baum’s firm allegedly used such shady tactics as robo-signing to overwhelm already besieged homeowners, and in October 2011 paid a $2 million fine to settle a federal lawsuit’s allegations of filing deceptive paperwork in order to accelerate foreclosures.  That same month, Baum and his law firm got more unwelcome attention, when the New York Times published a former employee’s photos from the firm’s 2010 Halloween party.  In a remarkable display of callousness and bad taste, a number of Baum’s employees dressed up as homeless people, even holding up cardboard signs referencing the law firm’s efforts at tossing the foreclosed out of their houses.  The ensuing firestorm of bad publicity led to mortgage giants like Freddie Mac and Fannie Mae dropping Baum’s firm.  By late November, Baum announced that his law firm was shutting its doors for good.  That’s karma for you.

The “Are You Serious?” award goes to European Union officials who have instituted a law forbidding drink bottlers from claiming that water can prevent dehydration.  Defying both science and common sense, the European Food Standards Authority (EFSA)—after a 3 year investigation, no less—concluded that labels on bottled water could not include the claim that drinking water helps avoid dehydration.  In 2008, the same EFSA officials were ridiculed for banning “bent” bananas (I foolishly assumed that all bananas are curved, but what do I know?).  Bottled water producers who defy the EU’s new regulation can face up to 2 years in jail.  Critics of the EU were incredulous.  “This is stupidity writ large,” said Conservative MEP Roger Helmer.  The United Kingdom’s Department for Health’s spokesman also ridiculed the new law, saying “Of course water hydrates.  While we support the EU in preventing false claims about products, we need to exercise common sense as far as possible.”  Denying the right to say what is both scientifically correct and a matter of common sense?  With reasoning like that, it’s no wonder the EU is falling apart.

The “Let’s Go to the Videotape” distinction goes to Aransas County Court-at-Law Judge William Adams.  The disturbing 2004 video of Judge Adams beating his then-teenage daughter with a belt and cursing at her went viral last month after the now 23-year old woman uploaded it to YouTube.  As a result, Judge Adams was engulfed in controversy, with CNN, the Associated Press, and other national media outlets picking up the story.  Judge Adams admits the incident took place but insists that “it’s not as bad as it looks on tape.”  Besides the public outcry, multiple official investigations are underway prompted by the footage.  Judge Adams went on paid leave in early November, and by late November, the Supreme Court of Texas had temporarily suspended him as well.  The suspension, in which Judge Adams makes no admission of “guilt, fault or wrongdoing,” is effective while the State Commission on Judicial Conduct pursues an inquiry into the jurist.  I cannot imagine what Thanksgiving was like at the Adams household, but I’ll bet cellphone cameras were not welcome.

Finally, nothing says more about our litigation-obsessed society than the “You Mess With the Bull, You Get the Lawyer” award.  If you have ever admired the thrill of running with the bulls in Pamplona, Spain after reading Ernest Hemingway’s The Sun Also Rises, but wanted a less dangerous alternative, then consider promoter Phil Immordino’s Running of the Bulls event in Cave Creek, north of Phoenix, Arizona.  Ten years ago, Immordino organized several “bull runs” in Nevada and Arizona that were patterned after the famous Spanish tradition during the San Fermín festival, but had to abandon the events due to the high cost of liability insurance.  But now, with ample lawyering, he has figured out a way to conduct an American version that reflects our liability-conscious culture.  First, the bulls’ horns are duller than those in Spain, and they are a less aggressive breed than their Spanish counterparts.  Then there are the paramedics standing by, the rodeo clowns poised to step in and distract the bulls, and the strategically-placed escape routes along the quarter-mile course that allow runners to evade those bulls that get a little too close for comfort.  And, of course, since this is America, everybody involved is insured to the hilt.  Immordino’s company carries $1 million in coverage, the owner of the land where the course is located has another million, and the owner of the 1,500 lb. rodeo bulls that will be used also has liability insurance.

Then, of course, comes the waiver of liability that each of the bull run participants is required to sign before he can pay his $25 and indulge his inner Hemingway.  According to Immordino, “We have a seven-page waiver, and they need to initial every paragraph and every page.  It says you, your neighbor, your cousin, and your cousin’s brother can’t sue anybody about any of this.”  While no one has ever been gored or made a claim stemming from Immordino’s events, the organizer has learned that legal trouble is never far away; People for the Ethical Treatment of Animals (PETA) threatened a boycott of the Cave Creek bull run.  It’s just like Pamplona, only you run more risk of being gored by a lawyer than a bull.

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