May 14, 2006
Lawyers Pose Health Risk: Study
Saw this chuckleworthy piece over at Overlawyered:
A team of researchers led by Richard Gun, visiting research fellow at Adelaide University, ‘has found patients who engage a lawyer after receiving their injury are five times less likely ever to return to work.’ They also appear to suffer more pain and for longer periods than accident victims who do not have lawyers.
Even allowing for an expected correlation between the two variables — persons with more serious injuries are presumably more likely to retain lawyers — legal representation appears to have an independent effect in prolonging the process of recovery, Sun says.
According to the study’s abstract, among 147 car accident victims suffering from whiplash, ‘consulting a lawyer was associated with less improvement in NPOS (P < 0.05), … [and was also] associated with a lesser chance of claim settlement (P < 0.01) and a greater chance of still having treatment (P < 0.01) after 1 year’. Is this another example of the Lionel Hutz effect?
Hutz: I will like to talk to you about bringing legal action to the fiend who did this to your boy.
Homer: Well the fiend who did this to my boy is my boss. Besides, the doctor says it’s just a bump on the head and a broken toe, nothing serious.
Hutz: Pfft. Doctors. Doctors are idiots! There is no telling what type of permanent injuries he might have. You might have to wait on him hand and foot for the rest of his natural life. That’s the down side. Now here is the good part. You can ching ching ching cash in on this tragedy.
Homer: Wow.
Or, perhaps:
Hutz: All right, gentlemen, I’ll take your case. But I’m going to have to ask for a thousand-dollar retainer.
Bart: A thousand dollars? But your ad says “No money down”.
[shows his paper ad: “Works on contingency basis. No money down.”]
Hutz: Oh! They got this all screwed up…
[makes a few corrections: “Works on contingency basis? No, money down!”]
Bart: So you don’t work on a contingency basis?
Hutz: No, money down! Oops, it shouldn’t have this Bar Association logo here either.
Or, while we’re on a roll here, this delightful exchange:
Hutz: I move for a bad court thingy.
Judge Snyder [modeled on Robert Bork]: You mean a mistrial?
Hutz: Right! That’s why you’re the judge and I’m the law-talking guy.
Judge: You mean the lawyer?
Hutz: Right!
Posted by Jaani at 4:26 PM | Comments (0)
May 13, 2006
Liability for Epilepsy Caused by Video Gaming
An attorney is gathering information on epileptic seizures related to video games. Can a lawsuit be far behind?
Posted by Jaani at 1:51 PM | Comments (0)
March 12, 2006
On French Internet, Copyright and DRM Policies
Two recent news stories highlight the development of French internet policy. France is traditionally billed as the ‘safe haven’ of P2P users — portrayed as having a liberal, permissive copyright regime and consumer-friendly anti-circumvention laws.
The first story certainly confirms this view. The French Parliament is considering legislation that would mandate Apple to open its iTunes music store to non-iPod portable music players, and permit users to transcode Apple music files into cross-compatible formats:
Under a draft law expected to be voted in parliament on Thursday, consumers would be able to legally use software that converts digital content into any format.
It would no longer be illegal to crack digital rights management — the codes that protect music, films and other content — if it is to enable to the conversion from one format to another, said Christian Vanneste, Rapporteur, a senior parliamentarian who helps guide law in France.
‘It will force some proprietary systems to be opened up … You have to be able to download content and play it on any device,’ Vanneste told Reuters in a telephone interview on Monday.
Naturally, Apple played coy, threatening to close its music store to French users for fear that the unrestricted files would be disseminated into other jurisdictions. (On the other hand, the proposal may demonstrate to Apple just how much more popular its store would be if it sold unencumbered technology.)
The second story, however, is not of the traditional kind, though certainly a welcome counter-balance:
Internet copyright pirates will face prison and large fines after French MPs defied left-wing opposition in pushing through a bill Thursday to prevent illegal downloading of music and films.
The controversial bill to stamp out illegal downloads in line with a 2001 European Union directive has highlighted deep divisions in the country over how to balance consumer rights and copyright in the Internet age.
Essentially, people who distribute ‘cracks’ (programs enabling users to circumvent copy-protection mechanisms on music and video game discs) will face up to six months’ imprisonment and fines of up to € 30 000. Users of a crack for this purpose will be fined € 750.
Posted by Jaani at 11:19 AM | Comments (0)
December 13, 2005
Law Firms Not Liable in Alleged Web Hacking Case
'Two law firms that allegedly surreptitiously accessed an expert witness's password-protected Web site to show a judge that the witness violated a gag order cannot be held liable under the Digital Millennium Copyright Act, ruled a federal judge who dismissed the suit. The occupational illness expert had accused Keller & Heckman and its attorney Douglas Behr of hacking into his site by acquiring a password and sharing it with Jones Day lawyers in the midst of a landmark toxics trial.'Posted by Jaani at 2:38 PM | Comments (0)
Nanoparticles in the Workplace: Risks and Liability
'As the [American] National Institute for Occupational Safety and Health develops guidelines for working with nanomaterials, experts say the nanotechnology sector is ahead of the curve when it comes to understanding job-related risks, and is doing far more early research than other industries. One expert says the asbestos industry, which doled out staggering sums of money for liability lawsuits, paid the price for a failure to fully understand the product's dangers before putting it on the market.'
The comparison between nanotechnology and asbestos workers is particularly apt. Risks associated with new materials and technologies need to be uncovered and quantified in an honest and public fashion if workplace injury, employer liability and bad publicity are to be avoided.
Posted by Jaani at 2:37 PM | Comments (0)
October 12, 2005
Electronic Conveyancing Another Step Closer
The New South Wales Department of Lands has announced that its transition to an electronic register of land titles will be complete by December 2006. The transition is a massive undertaking, involving the digitisation of some 66 000 paper certificates of title and issuance of transaction access credentials to several thousand conveyancers and legal professionals. From the article, it appears that the transition will also be used to bring 15 000 odd remaining general law parcels within the Torrens system:
The NSW government expects it will save people conveying or dealing with land formerly held as old system title about $2000.
Minister for Lands Tony Kelly said that a single register would help synchronise the key data sets of the NSW Spatial Data Infrastructure, which supports decision making across government for planning, service delivery and natural resource and emergency management.
‘Over 300 government agencies have dealings with land on a day-to-day basis and will benefit from having access to information from a complete and accurate, digitised land title register’, he said.
The entire project will cost AU$6.2 million. It is highly questionable whether it will narrow existing avenues for fraud, with some experts claiming that the new system will be more vulnerable to exploitation, particularly silent alteration. Verifying the identity of a purported registered proprietor remains a problem under any system, especially an electronic one. However, because almost all fraud occurs in the physical absence of the registered proprietor, by increasing the number of transactions able to be completed electronically — without face-to-face contact — the potential for false impersonation or other mischief substantially increases with an electronic conveyancing system.
However, the new register may prove a more effective and timely mechanism by which to inform caveators and other interested parties of dealings with respect to land. The instantaneous nature of an electronic conveyancing system certainly promises to eliminate the ‘race to the titles office’ that was hitherto the staple exercise of many property lawyers. Whether it can more successfully meet the objectives of Sir Robert Torrens remains to be seen.
Posted by Jaani at 10:31 PM | Comments (0)
October 6, 2005
eBay faces court over contact lens dispute
Ebay is facing legal action for allegedly "aiding and abetting" the sale of contact lenses via its website without the involvement of a qualified optician.…
Posted by Jaani at 9:51 PM | Comments (0)
Perry Mason, Meet Your Expert Technology Witness
Lawsuits over who can profit from ideas are increasingly a foundation of the technology industry, touching off a race to assemble teams of expert witnesses.Posted by Jaani at 9:27 PM | Comments (0)
September 24, 2005
On The Importance of Proofreading
See here for a particularly egregious example of a court filing that has not been properly proofread. Compare, in particular, the phrase ‘disc herniation’ on p 2 with its corresponding incarnation on p 1. Whether malapropism, typographical error, or simply the joke of a bored clerk, the attorneys concerned must be considerably embarrassed. Given that such errors are commonly the result of replacing the intended word with a habitually typed word (I often find myself typing ‘brick-lawyer’), it does beg the question of what the author normally writes in their submissions…
Posted by Jaani at 11:59 AM | Comments (0)
September 19, 2005
Clayton Utz Lawyers Accused of Witness Coaching in Kazaa Trial
The Australian is reporting that a complaint has been received about three Clayton Utz lawyers involved in the Sharman License Holdings trial, acting for the developer of the popular KaZaa file-sharing software. According to the complaint, the lawyers are alleged to have influenced the testimony of an expert witness, Professor Keith Ross.
Professor Ross was required to give evidence on the extent to which Sharman License Holdings maintained control over the content on the KaZaa network. Suggesting that it had less control would advantage the defendant in two ways: first, by distancing the conduct of KaZaa’s users from the developer and distributor of the software; and second, by suggesting that Sharman could not be seen as authorising or encouraging users to transfer copyrighted materials since they were incapable of filtering them:
NSW Attorney-General Bob Debus yesterday confirmed that the state’s Legal Services Commissioner, Steve Mark, was investigating a Clayton Utz partner and two senior associates after receiving a complaint about the solicitors’ conduct in the [Kazaa] trial, which concluded last week.
The Clayton Utz lawyers — partner Mary Still and senior associates Nicholas Tyacke and John Fairbairn — have denied any wrongdoing in their conduct in the case. If the Law Society deems disciplinary action is warranted, proceedings will be commenced in the NSW Administrative Decisions Tribunal, which can impose sanctions ranging from a formal reprimand to cancellation of a practising certificate.
These are pretty serious allegations. They stem from comments made by Wilcox J in his Honour’s judgment, handed down last week:
[26] The principal parties relied heavily on evidence from so-called ‘independent experts’. Much of this evidence was helpful, some of it extremely valuable. Some of this evidence was not helpful, either because it related to a peripheral, even irrelevant, matter or because I was compelled to form an adverse view about the objectivity or intellectual integrity of the witness. I mention, in this context, particularly Dr Roger Clarke, whose evidence on behalf of the Altnet parties was little more than a partisan polemic, and, to a lesser extent, Professor Ross. …
[227] Professor Ross is Professor of Computer Science at the Polytechnic University in Brooklyn, New York. He has taught computer systems engineering at university level since 1985 and has published widely. … The professor was obviously well qualified to give expert evidence in this case. However, my confidence in him was shaken during the course of his cross-examination.
[228] Mr Bannon showed Professor Ross a draft of his report that contained a passage dealing with the relationship between Joltid’s PeerEnabler software (used in FastTrack) and Altnet’s TopSearch technology. The draft shows exchanges between Professor Ross and a solicitor at Clayton Utz, acting for the Sharman respondents. Professor Ross initially wrote the words: ‘The Altnet TopSearch Index works in conjunction with the Joltid PeerEnabler to search for Gold Files’. The solicitor crossed out this sentence on the draft and suggested a substitute sentence: ‘TopSearch searches its own Index file of available Altnet content and PeerEnabler is not needed or used for this, other than to assist in the periodic downloading of these indexes of available content’. Professor Ross replied: ‘I was not aware of this, even after our testing. But if you say it is so, then fine by me’. He left the solicitor’s words in the draft.
[229] When Mr Bannon asked about this, Professor Ross responded:
‘Unfortunately, I don’t have the report memorised. But it is my recollection that I was not comfortable with this and I took it out in the end. But I would like to see my report to confirm that.’
[230] Mr Bannon then showed Professor Ross the email showing the solicitor’s response to his ‘fine by me’ reaction. The solicitor said: ‘Keith, we want to try to avoid you being exposed to criticism so how about’. The solicitor then suggested the sentence that appears in Professor Ross’ final report. The cross-examination went on:
‘You see it wasn’t you feeling uncomfortable. Clayton Utz said, well, in effect, Keith we want to try and avoid you being exposed to criticism, so how about something different. And they ruled out what you were otherwise prepared to swear up to based solely on their say so? — I wouldn’t agree with that. I wouldn’t have been comfortable putting it into the final report I suppose unless I was given further evidence of this fact.’
That is not what you communicated? — Well you have to read between the lines. I said that we had phone calls as well and during the phone conversations often I would indicate that there were some things I was uncertain with and I would want an additional explanation or justification.
You said: “If you say it is so then fine with me.” That is all you said? — Once again I do not have my final report in front of me so I am not 100 per cent sure what I put there. But again in saying this I just know the way I am personally. What I am saying there: “Fine with me, once you give me additional proof”.’
[231] I cannot accept that explanation. I am forced to conclude that Professor Ross was prepared seriously to compromise his independence and intellectual integrity. After this evidence, I formed the view it might be unsafe to rely upon Professor Ross in relation to any controversial matter. Of course, that does not mean his evidence should be totally disregarded.
This is not the first time that the firm has been the subject of judicial critcism. In 2002, Eames J of the Supreme Court of Victoria alluded to less than professional conduct on the part of Clayton Utz’ solicitors. They’ve since had trouble maintaining their image in various other respects. On the latest allegations, the firm’s spokesperson had this to say:
“Clayton Utz complied with the obligations imposed on solicitors by the Federal Court in relation to the preparation of expert evidence and there was no finding in the judgment to the contrary nor was there any criticism of the firm’s conduct.”
Posted by Jaani at 12:56 PM | Comments (0)
September 18, 2005
A New Form of Medical Liability: Impunctuality?
The ABC is reporting that doctors could be sued for being late to appointments, according to several lawyers:
The Downs and South West Law Association's Darryl Cox says some people are waiting up to an hour for appointments, costing them time and money and doctors need to stop over-booking.
"If it's the case that the doctor's practice is to just book people at random and essentially over-book the people, then it may well be the case that people who are forced to wait because of the over-booking may well have a claim against the doctor," he said.
The chairman of GP Connections in Toowoomba, Dr John Lamb, says doctors are not deliberately trying to make people late.
"I could also respond by saying that if a patient has a right to take legal action against the doctor because the doctor's running late, does that mean the doctor also has the ability to take legal action against the patient if they're late or don't turn up?" he said.
He says given the current doctor shortage, patients should be more understanding.
Indeed. Owing a duty to not be late could erode what little semblance of unstructured time we have left. It would reduce the quality of care provided to patients and cause irreparable damage to the way in which professionals and clients interact. Whilst it's perfectly reasonable to set minimum standards of care in respect of the quality of medical treatment provided, to impose a remedy for, er, 'breach of appointment' is for the law to make an unwarranted intrusion upon the private affairs of citizens.
Naturally, it could afford me a suitable cause of action against those blasted public transportation services. But if my own experience is anything to go by, moral culpability rarely goes with impunctuality: it's simply a fact of modern life that, as interactions become more complex and a greater number of factors have the potential to intervene to cause delay, it is a task of increasing difficultly to remain on time.
These would-be plaintiffs should bring a book, laptop or, failing that, an MP3 player with them into the waiting room. Then again, if they have time to contemplate bringing legal action over something as trifling as a late doctor, they probably don't have all that much to do.
Posted by Jaani at 2:54 PM | Comments (0)
A Different Kind of Property Right
'Although broadly categorized as personal property, Internet property has characteristics of both tangible and intangible property. Consequently, attorneys must take the special nature of Internet property into consideration when attempting to resolve legal difficulties relating to an Internet transaction, says Jonathan Bick.'
Posted by Jaani at 12:27 PM | Comments (0)
September 4, 2005
The Future of Cyberlaw
‘Cyberlaw’ is a phrase I have adopted to signify the application of jurisprudence in any electronic context. As a descriptive label, it has since been succeeded as the buzzword of choice by such phrases as ‘communications law’, ‘IT law’ and, more recently, plain old ‘internet law’ — as well as its more specific sub-branches, including copyright law, private international law, and so on.
Orin Kerr makes some interesting comments about this conceptual transition from cyberlaw to internet law, arguing that its future direction tends towards integration with existing doctrines rather than the forging of a new, discrete body of law:
The Internet was a world of cyberspace with virtual streets, virtual meeting places, and virtual crimes. … As of 1999, at least, lots of people expected the new cyberlaw to be the new law that governed this new virtual world.
Now let’s fast forward to today. Most schools still offer some kind of Internet law course, but the ground has shifted considerably. Instead of focusing on Internet law as the law of a new virtual world, courses are more likely to feature a grab bag of interesting questions of civil and constitutional law implicated by the Internet. … [M]ost are focused on covering a few areas of law in which the new facts of the Internet may change the assumptions of prior law.
In short, my sense is that Internet law has settled in a bit in the last five years. Its aspirations today are less grand and more doctrinal, and the key questions have shifted from virtual worlds to updating old rules given new technological facts in a few specific doctrinal areas of law.
Posted by Jaani at 1:58 PM | Comments (0)
September 2, 2005
Federal Judge Rejects Antitrust Claim Against Wireless Companies
'Cell phone users have long faced a frustrating expense: [t]heir old phones become useless as large wireless companies require customers to use specific makes of phones. In 2002, several wireless customers filed suit in federal court, alleging that the practice constituted unlawful "tying," in violation of the Sherman Act. On Tuesday, a judge dismissed the case, granting the summary judgment motion filed by Cingular Wireless, Verizon Wireless and AT&T Wireless Services, among others.'Posted by Jaani at 11:28 AM | Comments (0)
Woolworths' Supermarkets Acquisition Fuels Competition Concerns
'The Australian Competition and Consumer Commission is concerned about the effect of Woolworths’ proposed acquisition of eight Action supermarkets on competition in local retail markets.'Posted by Jaani at 11:28 AM | Comments (0)
August 29, 2005
The Impact of Non-Compete Clauses in IT Employment Contracts
'Microsoft's suit against Kai-Fu Lee and Google is based off of the thought that in some circumstances people can't avoid sharing or relying on trade secrets from their former employer when moving to a competitor. In MS's filing it says: 'Lee's conduct threatens to disclose or Lee inevitably will disclose Microsoft's trade secrets to Google and/or others for his and/or Google's financial gain in the course of working to improve Google search products that compete with Microsoft, and in the course of establishing and building Google's presence in China to compete with Microsoft's efforts in China.
According to CNET, thanks to this increasingly popular legal argument, defectors might face a lawsuit even if they did not sign agreements not to compete or not to disclose confidential information.'
Posted by Jaani at 11:14 PM | Comments (0)
Bankruptcy and Family Law: Creditors vs Family Interests
'In the countdown to the new bankruptcy and family law regime, Dr Tom Altobelli tackles the most difficult question that will be faced by the Family Court: who gets priority, family members or creditors?'
This is a very interesting issue, particularly in light of current mortgage practices. Read on for more.
Posted by Jaani at 11:13 PM | Comments (0)
ASIC Puts Spotlight on Insolvency
The corporate regulator has scored many runs in its policing of insolvency in the past year and would continue to play on the front foot, ASIC commissioner Berna Collier has warned.
Posted by Jaani at 11:13 PM | Comments (0)
Directors Liable for Debt Incurred Without Contract
A debt can be incurred by a company and the directors held liable for allowing it to trade while insolvent even in the absence of a formal contract for work, the NSW Supreme Court has found.
Posted by Jaani at 11:13 PM | Comments (0)
The High Court on Ratification
Hopes that the High Court would make a definitive ruling on ratification of breach of directors' duties in the Carabelas case have been dashed. But Yee-Fui Ng, from Clayton Utz, still found some valuable clues to the judges' thinking on the issue.
Posted by Jaani at 11:13 PM | Comments (0)
August 27, 2005
Child Refugee Sues Australian Government For Detention Trauma
In a landmark case, a young Iranian refugee is seeking compensation for the time he spent in two of Australia's immigration detention centres.
Posted by Jaani at 9:53 PM | Comments (0)
August 24, 2005
Former GIO Executives Guilty of Breaching Directors' Duties
Three former directors of GIO Insurance Limited have been found guilty of breaching their duties during AMP’s heated takeover of the company between 1998 and 1999.
Posted by Jaani at 2:44 PM | Comments (0)
August 18, 2005
Legal Ethics Agitprop and the Ford Pinto
Basically every private law subject I’ve taken in law school has had something to say about the Ford Pinto case. Various movements in legal theory have referred to it when discussing product liability, consumer rights, the moral turpitude of law and economics, legal ethics (including the procedural pathologies of adversarial advocacy and other annoying alliterations), responsibilities of in-house counsel and, relatedly, the presumed evilness of large corporations. Authors of textbooks on tort law devote considerable numbers of trees to its exposition and analysis.
The example has long since lost any meaning for students and, I hope, commentators (though some professors may continue to observe with amusement the indignant reactions I hear are common among the more ennobled first years). Nevertheless, I was surprised to discover that it is, in fact, utterly false.
Ford allegedly had in its possession a memorandum, so the story runs, to the effect that an $11 part could be installed into the Pinto that would substantially reduce the risk of immolation caused by fuel tanks ruptured in rear-end collisions. Supposedly, no recall was recommended on the basis that the cost of defending legal proceedings brought by passengers injured or killed would be far outweighed by the cost of recalling and fixing the affected cars.
In fact, as Walter Olson notes, and Overlawyered further explains:
The actual memo did not pertain to Pintos, or even Ford products, but to American cars in general; it dealt with rollovers, not rear-end collisions; it did not contemplate the matter of tort liability at all, let alone accept it as cheaper than a design change; it assigned a value to human life because federal regulators, for whose eyes it was meant, themselves employed that concept in their deliberations; and the value it used was one that they, the regulators, had set forth in documents.
So much for evil corporations, then. The famous example of economic rationalism is largely overblown, effectively a myth of unimaginative, left-leaning academics. Indeed:
In retrospect, Schwartz writes, the Pinto’s safety record appears to have been very typical of its time and class.
So the next time someone dredges up this example to support a disingenuous and vitriolic indictment of the legal establishment, do call them to account.
Posted by Jaani at 9:52 PM | Comments (0)
August 10, 2005
Dell Website Blunder Results in Bargains for All
According to an article in The Age, ‘[a] website blunder by Dell Australia has allowed hundreds of customers to order 250GB hard drives for AUD$8.80, almost [$200] less than the actual price.
According to posts on the Whirlpool and Overclockers Australia online forums, customers successfully ordered the hard drives online from 8.00am on Monday until 10.00am yesterday, when the particular drive was removed from sale.
One customer claimed to have ordered 60 hard drives at the incorrect price.’
“I would have been happy to accept cancellation of the order before payment had gone through because of a genuine mistake, but as payment has been made I consider the contract to be in place and I expect my hard drives,” he said.
“I’m sure Dell would have issues with me if I wanted to cancel an order after I had made payment on a different product.”
It seems uncontroversial that traditional contractual doctrines concerning invitations to treat would apply in an electronic environment. Consequently, where no consideration has yet been provided by the customer, Dell is not contractually bound to perform the contract.
For those lucky punters who did manage to pay in time, the situation is less clear. Presumably, the doctrine of mistake would apply, but here the mistake was unilateral. Prima facie, then, Dell’s mistake does not afford them a basis for recission in law (Taylor v Johnson). Dell might plead non est factum, but the Petelin v Cullin principle only applies where the mistake is one ‘as to the very nature of the contract’. Being a mere mistake as to terms, this seems unlikely. Score one for the consumer.
However, Dell might argue that they are nevertheless entitled to correct the error on the basis of their conditions of sale (posted elsewhere on their website). These conditions expressly disclaim liability for factual errors on the website. Of course, this argument assumes that such terms are actually incorporated into the contract.
Plainly, though, the purchasers must have bought the hard drives with the knowledge that the price was ludicrously incorrect — the wholesale value of the drives is at least AUD$165 (and Dell is, after all, hardly known to sell hardware for less than cost). It might even be unconscionable for the purchaser to seek to enforce any entitlement to an $8.80 sale price (and plainly unreasonable, too). In any event, I suppose this means that vendors like Dell will be even more careful when advertising goods for sale for the payment of which automated payment procedures are accepted.
Posted by Jaani at 8:06 PM | Comments (0)
August 1, 2005
Addressing Novel Legal Issues in Virtual Property
There is a growing debate over the "virtual property" that gamers can accumulate in online video games, and how legal systems should deal with this new form of property. Attorneys Richard Raysman and Peter Brown discuss some of the novel legal issues raised by this unique species of property, and how major gaming companies are starting to deal with those issues.Posted by Jaani at 12:28 PM | Comments (0)
