Reasonable Doubts: Dial 'O' for Outrage: The Sequel

Tales from an overlawyered America

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When the news came this spring that famed non-murderer O.J. Simpson had struck a deal to cut broadcast ads for a lawyers' referral service, I figured that there went my last chance to make a living as a professional satirist of our legal system. Simpson as a 1-800-number TV pitchman was a better rebuke to the state of American law than any farce or skit I could have dreamed up, and it had the extra edge of being true.

That development reinforced my resolve to stick in the future to simple chronicle. Satire, after all, achieves its ludicrous effects by way of exaggeration, and I'm not sure how one would go about exaggerating the activities of a group such as the American Bar Association, whose annual convention this summer invited Simpson defense lawyer Johnnie Cochran to speak on the subject of truth in the legal profession, presumably on the same logic by which you might ask the local Terminix man to come talk about bugs.

All summer long I assembled news clips of this sort as fodder for my new Web site Overlawyered.com, and now that I'm officially giving up on satire I think there's room for the occasional column in this space just cataloging the harvest of clips in a straightforward manner. I see no reason, for example, to add any overlay of commentary to the story that came out of Lancaster County, Nebraska, in late August, reporting that a judge had declined to order the Taco Bell restaurant chain to pay for trips to India for Siva Rama Krishna Valluru and his wife, Sailaja. The couple had been eating a rice side dish which they were assured was vegetarian and were aghast to discover partway through that it contained meat. They argued that their devout Hinduism required as expiation for this swallowing of flesh a purification ritual that involved their bathing in the Ganges River, but Judge Jean Lovell said the expenses of such a trip did not count as reasonably foreseeable to the fast-food chain.

Nor will I ask anyone to crack a smile at the interesting hypocrisies that came to light last winter when Boston's top federal law enforcement official launched a splashily publicized crackdown on the shopkeepers and bed-and-breakfast proprietors of quaint Nantucket Island, many of whom, given the high cost of local renovations and a native reluctance to tamper with historic structures, have lagged behind in constructing the ramps and wider corridors required by the Americans with Disabilities Act (ADA). Ironically, as The Boston Globe reported, if the ADA enforcement actions go to trial it will be in a newly built federal courthouse that itself has been accused of massively violating standards for handicapped accessibility.

The jury boxes and witness stands in the building's 27 courtrooms, for example, can be reached only by way of steps. "We looked at the possibility of building in permanent ramps that were retractable, but it was such a burden on the budget we just couldn't do it," said General Services Administration project manager Paul Curley. The courthouse does, however, sport English oak paneling, a 45,000-square-foot glass wall overlooking the harbor, "spacious waterfront chambers for judges, and a five-story Great Hall."

Likewise, I intend to keep a sober mien when telling the story of how 27-year-old Theodore Nobbe of Clearwater, Florida, recently won acquittal from felony animal abuse charges that could have landed him in prison for five years. A fellow patron at the local Bombay Bicycle Club had reported Nobbe to the cops for allegedly dunking the head of a friend's parrot in his tequila-based drink several times, to see if it would get tipsy. Nobbe denied the Polly-in-Margaritaville charges of psittacine abuse, but an officer said the creature's upper portions seemed damp when he was called to the scene, and a Humane Society employee said when the bird was brought to the shelter it ate voraciously, a pattern consistent, she averred, with its having the "drunken munchies."

All very funny for the bird, you may think–hangover aside–but less funny for Nobbe, who'd had no previous problems with the law. Prosecutors said they had to charge him with felony as opposed to misdemeanor animal abuse because that's what the law specifies for "repeated" acts of abuse–and multiple dunkings counted as that. Animal rights advocates jammed prosecution switchboards demanding that the book be thrown at Nobbe, just as in recent years, to little organized opposition, they've successfully lobbied for increasingly stringent criminal statutes on animal abuse.

Over in Seattle, Sharon Kempler-Jones was encountering her share of animal-related legal headaches. Her troubles started one day while she was running her small consignment clothing shop, the Gypsy Trader. She noticed Chaya Amiad bringing a small, shaggy, leashed dog into the store. Taking the view that dog dander and clean clothing don't mix, she asked Amiad to leave it outside. The woman took offense and began to argue, and next thing Kempler-Jones knew she was being served with a complaint from the Seattle Office for Human Rights for disability discrimination.

Disability? Amiad wasn't deaf or blind, nor did she display any other visible handicap. But she produced a note from her psychologist declaring her to be "emotionally dependent" on the dog, which "has been privately trained to assist Ms. Amiad with cognitive disorientation and confusion" and without whose canine companionship she "would probably become housebound and highly dependent." Kempler-Jones had no way to know Amiad's psychiatric status at the time of the incident, but that didn't save her from an order to pay more than $650 and submit to sensitivity training.

In Bakersfield, California, the developer of the Fairway Oaks community has been put through the legal wringer for a different sort of insensitivity: toward lawyers. Fairway Oaks had adopted a policy of not selling new houses to attorneys because it considered them too likely to get into disputes. Attorney Timothy Liebaert was "shocked" and "very mad" to learn about this policy, and he sued them. How better to disprove the stereotype that lawyers are overly litigious? Liebaert lost his original claim after a judge ruled that California discrimination law does not protect occupational status, but he has filed an appeal and vows to keep the case going on new theories, such as a claim that a developer is obliged to announce a no-lawyer policy in its ads. By the time this is all over, even if Fairway Oaks is completely vindicated, it will have reason to be really, really sorry it ever acted disrespectfully toward attorneys.

Between banning trench coats and other "oversized garments," installing metal detectors, and ripping out lockers and other objects that symbolize the now obsolete concept once known as "privacy," high schools provided another steady source of material for a survey of legalistic excess. "We're not trying to take away anyone's personal freedom," declared Assistant Principal Ken Spurlock of Boone County (Kentucky) High School in suburban Cincinnati. When you see a quote like that in a news story you know at once that, yes, personal freedom has taken another hit. In Boone County's case, the school had extended its dress code to prohibit students from wearing clothing that it deems unsafe, such as overlong jeans they might trip over or sandals without back straps that might make them slip on a staircase. Naturally it's for their own good–what isn't, these days? Seventeen-year-old Malia Novak said she was willing to live with the new rules, though they'd mean dropping many favorite pairs of shoes from her schoolday wardrobe, but added, "I think people probably trip because they're clumsy, not because of their shoes."

Boone also bans the carrying of book bags and backpacks unless they're made of mesh or a transparent material, thus following the example of many other schools that view their students as potential Dylan-Klebolds-in-training unless proven otherwise. Increasingly, writes Chicago Tribune columnist Steve Chapman, schools treat the students involuntarily committed to their charge as "dangerous, incorrigible, undeserving of respect" or privacy. "What's the difference between school and prison?" Chapman asks. "At school, you don't get cable TV."

In early September, officials at Winneconne High School in Wisconsin made news by banning T-shirts and other clothing with the "Billabong" brand name, which they said was too suggestive of bong, the term for a marijuana water pipe. An Australian aborigine word meaning lagoon, Billabong is the name of a company that originally made surfboards and later branched into surf clothing. "I realize Billabong is a surfing company," said Principal Ed Dombrowski. "If we were in California or Florida where they do a lot of surfing, I would understand. But we don't surf here, so where do we draw the line?" Where, indeed? Adam Szadkowski, who was ordered to go to the restroom and turn his shirt inside out to conceal the offending word, found the rule "ridiculous": "Are they going to ban us from wearing a shirt that says potato just because it has the word pot in it?" After the story began drawing press interest, school officials changed their minds and decided to lift the ban.

And all over the place, the Speech Police were on the march. Bloomberg LP, whose leased terminals handle an estimated 3 million pieces of e-mail on a busy day in the business world, quietly installed software that prevents users from employing words deemed profane, obscene, or racially insensitive. If you try to send a message using one of the forbidden words, a pop-up reprimand instructs you that such language is "inappropriate in the context of business correspondence." Company founder Michael Bloomberg said the new policy was adopted "for fear that offensive e-mails would lead to harassment lawsuits." Most users of Bloomberg terminal e-mail are not employees of the company itself, but harassment law has lately been expanding to expose businesses to liability for failing to curb "customer-on-customer" harassment.

For the moment, many verbal malefactors are still being let off with warnings. In Chicago, the faculty union at Daley College finally managed after two years to secure the dismissal of the charges pending against it before the city's Commission on Human Relations. Its sin? Having published in its newsletter an opinion piece critical of affirmative action. By the standards prevailing in conservative magazines the offending piece was not especially extreme in tone, but its author, Professor James Bell, was still accused of jeopardizing "the rights of students and staff at Daley to equal access" by "mak[ing] students uncomfortable in an institution where comfort is essential for learning." (The commission finally dismissed the complaint on the grounds that the college was not a "public accommodation.") And the Department of Human Rights in St. Paul, Minnesota, agreed to back off from a complaint it had filed against the city's newspaper, The St. Paul Pioneer Press, accusing it of racial discrimination for having run an editorial cartoon on college athletic recruitment that offended many local blacks.

Even from Canada, renowned for the grip held by political correctness on its public life, there came word that the Canadian Broadcasting Standards Council had declined to penalize Global Television for its July 1998 broadcast of a 45-year-old Bugs Bunny cartoon. A feminist complainant had hauled Global before the tribunal over an episode of The Bugs Bunny and Tweety Show, alleging that Bugs had uttered sarcastic remarks demeaning to women. The commission decided that the wascally wabbit, however backward his attitudes, was merely behaving as a creature of his time.

I'd like to say 'That's all, folks," but I'm sure it won't be.

Contributing Editor Walter Olson (wo@walterolson.com) is a senior fellow at the Manhattan Institute and the editor of Overlawyered.com.

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