Overlawyered, you silly buggers
Every day, I peruse a wide variety of law blogs (blawgs?) for post fodder. I’m pretty discriminating, which is why occasionally posts are few and far between. One good source is Overlawyered, written by an AEI fellow and unabashedly in favor of tort reform. Now, my inclinations run in the opposite direction, but I still enjoy the site’s posts regarding overbearing laws and craaazzzy lawsuits.
But the second I start reading the latter, Overlawyered’s clear bias jumps up and smacks me. They claim they are not against litigation per se, but they don’t seem to be too concerned with refraining from painting plaintiffs in the worst possible light.
Take, for example this post. Among the daily round up was a link described thusly:
Shot and paralyzed in parking lot of South Florida strip club, cared for back home in Tunisia, Sami Barrak is now $26 million richer by way of his negligent-security suit [Sun-Sentinel]
But clicking through reveals a few things. That Barrak was “sent” back to Tunisia because he could no longer work, and that the medical care he is receiving is, shall we say, not the greatest. This doesn’t quite gibe with what Overlawyered would have you believe. Not to say that either of those things should have bearing on the outcome of the suit, but that the portrayal of the plaintiff is misleading. It was not hard to discover this discrepancy, it took the merest of clicks.
I think the reason that I’m pretty much completely philosophically at odds with those luminaries is the fact that, besides their creeping bias, they tend to not follow their logical arguments to their conclusion. To wit, this post: A tale of two consumer complaints.
The author, Ted Frank, provides a couple of anecdote, all in a reasonable tone. Both of them deal with technical breaches of law that carry with them a financial penalty. Both of the anecdotes are intended to illustrate how . . . reasonable people . . . would deal with such violations, as opposed to going to a lawyer and initiating a suit, if not a class action suit.
The first incident involves a restaurants that is printing expiration dates on credit card receipts, a violation of FACTA and something that some lawyers have begun to form into class action suits, much to Overlawyered’s chagrin. Frank gives the restaurant’s proprietor a ring, said proprietor agrees to change the offending printouts, and offers a free meal. Problem solved.
The next anecdote involves the Federal Do-Not-Call registry. Having received a few robo-calls in violation of his registration on said registry, Frank contacts the company in question, and gets a legal run around. The situation stands as follows.
The attorney wrote back two days later with a $150 offer, and the ball’s in my court to decide by Monday. They still haven’t apologized, offering nothing more than “regret.” I’ve offered to settle for $250, which is about the value of the time I’ve wasted spending complaining about it, though that would go up if I have to waste more time bringing it to court.
And Frank asks:
Should I sue for $1000 plus attorneys’ fees ($3000 for two willful violations, if I were inclined to make the argument under Safeco v. Burr)? Or should I just take the offer should they refuse to up it?
Now, the clear implication is that a reasonable person would just take the money and be happy about it. Why fight it?
And this is where I become a little curious. The answer to “Why?” is because the company is flagrantly violating the law. I find it highly unlikely that the offender has called Frank by his lonesome, so that paltry $1000 is probably orders of magnitude below what the company should, rightfully, be paying. What’s that thing we have in America? Oh, yeah, the rule of law.
The fact that they engage in such strident attempts to dodge payment tells me that a) most people take much less then they are owed, and b) most people don’t bother to follow up. Following the logic like it was Lassie, the conclusion that arrives is that the best way to stop the company from engaging in there illegal and moderately annoying behavior is to institute a class action suit.
Perhaps the reform-o-nauts gripe is that such an action would result in an attorney netting a hefty contingency fee. But let’s break this down into a few options.
1. Company settles with a limited number of complainers for a fraction of the amount the law calls for.
2. Every person who is on the receiving end sues, with or without lawyers.
3. Violatees band together as a class.
In option 1, the company goes along their merry, telemarketing ways, and gets away with it. In option 2, legal fees are cumulatively higher, the legal system has to deal with countless cases, and some people are left unrepresented. In option 3, legal fees and court cost are minimized, and the situation gets dealt with.
Of course, it would be a merry little world where all problems could be dealt with through a phone call and self help, but that isn’t always the case. Overlawyered’s refusal to acknowledge that, at the end of the day, is why I can’t get behind their philosophy.
I do enjoy reading those crazy stories, though.
