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Crystal Cox is Getting So Much Free Speech Coming at Her, She Probably Got Some in Her Eye

Redwood sunlight by NPS Photo [Public domain], via Wikimedia CommonsThere is not much I can add to the saga of Crystal Cox except for a few dirty puns. The bottom line of this story is that a “blogger” is not always a journalist. Sometimes a “blogger” is just an extortionist. I will relate the story by shamelessly quoting from better legal bloggers.

A good summary, in dramatic form, of how Crystal Cox operates comes to us from Jordan Rushie:

Imagine this…. you Google yourself. To your surprise, a whole bunch of stuff that is blatantly untrue comes up. Being an adult, you call the person who wrote it. This is how the conversation goes down:

“Did you write all that stuff on a website about me?”
“Yup. I’m an investigative blogger journalist!”
“Um, a bunch of the stuff you wrote about me is untrue. Actually all of it is.”
“Oh sure, I know. But I’m a journalist blogger so I can say whatever I want. First Amendment, bitch! But tell you what – I’m also reputation manager. If you pay me $2,500 a month, I’m sure a lot of that untrue stuff would go away.”
“Uhhhhhh… wait a second. You wrote a bunch of stuff that’s untrue about me. And now you’ll only take it down if I pay you?”
“Yup! And if you DON’T pay me it’s going to get worse! I’m going to buy a bunch of domain names that involve you and your family. Not only will I smear your reputation, but I’ll smear theirs, too! I’ll write all kinds of stuff, like call your wife a slut! I’ll even go after your four year old child!”
“That’s extortion!”
“No silly, it’s not extortion! It’s journalism! Investigative journalism!”

You’re probably saying to yourself “nah, that couldn’t happen. That’s illegal. A person could get in a lot of trouble for doing something so irresponsible and probably illegal.”

Too bad that’s exactly what Crystal Cox did. Twice now. Maybe more.

Crystal Cox first came to the public’s attention last year, when a judge ruled against her in a defamation suit and ordered her to pay $2.5 million. After some hand-wringing over what this might mean for other bloggers, it eventually became clear that Crystal Cox actually runs an online, reputation-based protection racket. That is many things, but it ain’t journalism.

At the heart of the current kerfuffle is first amendment bad-ass Marc Randazza (Full disclosure: he’s my lawyer in this thing I’ve got going on. That’s how I know he is a bad-ass.) When Crystal Cox did not get what she wanted from Marc Randazza, she went after him by registering dopey domain names like When that didn’t work, she went after his family, registering domains in the name of his wife and three-year-old daughter.

This is not a valiant warrior fighting the forces of darkness to defend freedom of speech. While it may be true that the front-line warriors for free speech (and I mean the speakers themselves, not their attorneys), are often ultimately fighting to clear the way for people who actually have something useful to say, Crystal Cox doesn’t even fit that description. She is not a reporter, journalist, or even the kind of blogger who just regurgitates other people’s news in a restated format (something about which I know a thing or two.) She is not a blogger in any meaningful, useful, constructive sense. She is a thug, nothing more, as court documents and her own statements and actions amply demonstrate.

Trying to shut her down is not necessarily the answer, though. In some ways, it is helpful to know that people like her are out there. As Marc Randazza says: “Sunshine is the best disinfectant. The cure for bad speech is more speech.”

Consider this my ray of sunshine.

Photo credit: Redwood sunlight by NPS Photo [Public domain], via Wikimedia Commons.


Taking Down the Trolls – UPDATED

As part of my ongoing coverage of my experiences at South by Southwest Interactive 2012, here is a my recap of a session from this morning entitled “The Undoing of Copyright Trolls” (#UndoTrolls on Twitter). Here is a recap of my notes on the session:

I've had my own run-ins with some pretty big trolls

I've had my own run-ins with some pretty big trolls

The session was conducted by Robert A. Spanner, president of the Trial & Technology Law Group. Copyright trolls, a relatively new phenomenon, acquire copyrighted material or work for someone with copyrighted material. They then go on the internet & look for people using that material. When they find someone they think has posted infringing material, they shake them down for money. The troll’s role, in essence, is that of an extortionist.

He says the problem began with production and record companies that gave the impression that infringement was a capital crime. If the public thinks copyright is extremely serious, this makes copyright trolls’ job much easier because people are more likely to cave in to demands.

Here are a couple examples of people who take a different view of copyright:
Angry Birds: the owner of these universally-recognized images views copyright infringement as free additional exposure for his products.
Neil Young thinks distributing music over the internet has taken the place of radio, meaning it is the best way for new music to quickly get wide exposure.

The most famous copyright troll is Righthaven, a company Spanner says was created specifically to be a copyright troll. Righthaven apparently acquired all of the production from the last several years of a Las Vegas newspaper. Its agents would locate infringing material online and attack.

The Digital Millennium Copyright Act (DMCA) allowed them to subpoena user info from the ISP to find out who posted an image. The troll has to provide certain info to get the subpoena. Trolls, Spanner says, are not very good at filling out the paperwork to get the subpoena. They have to pursue these cases in volume for business reasons, so they don’t always pay close attention to the paperwork. Trolls, he says, “say the darnedest things” in these papers.

Two documents required by the statute: a declaration of infringing material, identifying the material with some particularity, and a statement of copyright owner. These two documents, as filed by a copyright troll, often conflict with each other. Usually, they are full of misstatements. The trolls “learned their tactics in the sewer,” according to Spanner.

Once he files and wins a motion to quash the subpoena against the troll, the case should get thrown out for lack of evidence. The next step after getting a motion to quash granted is for the defendant to take down the offending material. This really screws the troll.

If the troll claims an error in the first petition, it must submit a revised request for a subpoena or drop the matter entirely. The troll has to identify the infringing material. If the material is taken down, the troll has nothing to claim. The troll has to show current use of the infringing material, which troll now cannot do. The troll also has to show that they have given the ISP enough information to locate and remove the infringing material, which the troll also cannot do. As a result the case gets thrown out a second time.

Courts have held that, if the troll fails to meet these statutory requirements, the case must be thrown out. Therefore, Spanner argues, if you can get past the first subpoena, you have a defense to copyright infringement under the DMCA.

At this point an audience member asked a question re: why Righthaven is called a “troll.” Spanner answered that trolls are only interested in collecting money, not so much in enforcing copyrights. It is not the fact that they are enforcing copyrights, in and of itself, that’s the problem. It’s that, according to Spanner, they do it so badly. Trolls have no interest in litigating. They may even drop defendants from a suit if it gets too hard, but they also tend to file mass suits against thousands of defendants with disparate circumstances, because it is more efficient than filing separate suits..

Now that you beat the troll, Spanner asks, are you done with him? The troll can’t bring the case again, so it is a pretty clear victory. Spanner says a copyright lawyer should consider putting the troll out of business at this point. After losing a case in this way, a troll could be facing tens of thousands of dollars in attorneys’ fees. It would not take many such motions to put a troll out of business entirely. A motion for attorneys’ fees is what brought down Righthaven.

It is not generally known, says Spanner, that if you win at that first phase of the litigation (the DMCA subpoena), you win.

He spoke about mass troll cases as well, with hundreds or even thousands of defendants accused of BitTorrenting movies. Some pretty cool software detects BitTorrent users in the stream of the internet. It is apparently rare to see a BitTorrent case without thousands of defendants. From the troll’s point of view, if 10% each pay $3,000 to avoid hundreds of thousands in statutory damages, the troll will get rich.

Spanner cited two cases of mass cases that did not go well for the troll. In a case in Fort Worth, Texas the ISP filed an elaborate motion to dismiss the troll’s subpoena. This was a nightmare for the troll, who just wanted to get money quickly. In a case involving the movie “Call of the Wild,” a troll filed suit over five different movies, naming more than 5,700 defendants. All of the defendants were sued in D.C., despite the fact that they were from literally everywhere. Even movie companies called it improper joinder. The judge allowed discovery to determine if joinder of all of the defendants in D.C. was improper. Eventually, after an extensive search, troll could only find 3 people out of 5,700.

I asked about what specific rights the trolls acquire for the copyrighted material, i.e. do they acquire the rights to enforce the copyright and collect royalties, or just enforcement? I’m not even sure how that would work, but it occurred to me that, if it is possible to only acquire the enforcement rights (or whatever they would be called), that would create an odd situation where a party is enforcing a right without actually suffering a harm, in the sense that the enforcement rights holder doesn’t actually lose anything due to the alleged infringement. Turns out it is not always clear what rights the troll obtains–these cases seem very unusual. I’m glad I learned this stuff, but that’s about it for me on this issue.

UPDATE (03/13/2012): It sounds like Righthaven is pretty much f***ed (via Wired):

Righthaven, a copyright-troll law firm that failed in its attempt to make money for newspapers by suing readers for sharing stories online, was dealt a death blow Tuesday by a federal judge who ordered the Las Vegas company to forfeit “all of” its intellectual property and other “intangible property” to settle its debts.

The order is an ironic twist to a copyright trolling saga that began in 2010, when Righthaven was formed with the idea of suing blogs and websites that re-post newspaper articles or snippets of them without permission.

U.S. District Judge Philip M. Pro of Nevada ordered Righthaven to surrender for auction the 278 copyrighted news articles that were the subject of its lawsuits.


Hospitals are now sending patients directly to lawyers?

A hospital network in Maryland has come up with an inventive way to deal with malpractice claims: sent the complainants directly to lawyers. Via the American Medical Association’s American Medical News:

MedStar Health, one of the largest health care systems in Maryland, prides itself on being proactive when faced with accusations of medical negligence.

MedStar says it discusses with patients what happened during treatment, works toward a resolution and, when appropriate, proposes a settlement. But if patients decline to settle, the health system takes an unlikely next step: It offers them the name and number of a lawyer.

Providing such referrals can resolve cases more quickly and keep complaints from turning into long legal nightmares, MedStar officials say. The strategy also saves health professionals and patients legal expenses. The vetted attorneys agree to take patients’ cases at a reduced rate.

A patient (or family member) asserting a malpractice claim against a hospital receives a referral for a reduced-fee attorney from the hospital, directly vetted by the hospital?

What could possibly go wrong with that?

Hospitals say the practice is good for patients, who often are unfamiliar with the legal system and want compensation for their injuries as soon as possible. But legal experts question whether patients are being misled by hospitals. They also wonder if attorneys on the list may have conflicts of interest and if doctors caught in the middle may end up paying a hefty legal cost.

“As a patient, why would you want that referral?” asked Karen M. McGovern, a Colorado medical liability defense attorney and a nurse for more than 20 years. “There’s a reason these attorneys are being referred by the hospital. What I suspect is that this is an attorney who doesn’t push the cases to trial and settles for lower amounts. Is that attorney going to make up the difference by going after the doctor?”

That’s a defense attorney making that argument. As in, an attorney who represents hospitals against malpractice claimants. She does not want some cakewalk attorney on the other side, because it would only take a little bit of evidence of some sort of undue influence or collusion between the hospital and the plaintiff’s attorney, and that hospital is in for a world of hurt. There is a very good reason why referral services, i.e. services that match the public up with lawyers, need to be independent entities. This sort of appearance of impropriety, even if none exists, is enough to sink quite a few ships. Plaintiff’s lawyers and other health-care atorneys are even less polite about the idea:

The attorney-referral idea could save legal costs for patients, hospitals and health professionals, said S. Allan Adelman, a Maryland attorney and past president of the American Health Lawyers Assn. But the move is risky, he added. For instance, a patient could sue the lawyer after a resolution is reached, alleging that the attorney was beholden to the hospital and did not fairly represent the patient’s interests.

“The patient could come back and file a claim against the attorney, saying he sold them down the river because of a conflict of interest,” Adelman said.

Susan A. Dennehy, a New York plaintiff attorney, questions whether patients would be served by accepting a hospital’s attorney referral. “The concern would be if the patient didn’t fully understand the extent of their injuries,” she said. “Attorneys are not allowed to solicit clients, and it seems as if the hospital is kind of working with the plaintiffs’ attorney to resolve the case in a way that’s unorthodox.”

No matter what the public image may be of ambulance chasing scumbag lawyers, a good medical malpractice attorney must develop a considerable body of medical knowledge. Your average plaintiff is not going to understand their own injuries particularly well most of the time. The attorney has an important role in communicating so the plaintiff understands what his/her rights are. A settlement of a claim for damages requires a plaintiff’s informed consent, which requires an advocate with no relevant conflicts of interest to provide that information.

On the flip side, the pre-vetted plaintiffs’ attorneys may decide to go for broke, putting the entire medical team at risk:

McGovern, the Colorado defense attorney, worries that hospital-based doctors are at risk for costlier lawsuits if patients accept the hospitals’ attorney referrals.

“If [an attorney] is taking the case at a reduced fee, then the attorney is going to be looking to recoup the money that he could have made and looking to get his clients the money he thinks they deserve,” she said. “I think he would go after the doctor. You go after the deepest pockets.”

I have to wonder if any lawyer who did that might find themselves “disinvited” from the referral list, so long as the hospital can find a sufficiently non-suspicious reason.

Finally, given how tort reform is all the rage these days, a system like this might represent an effective capitulation (assuming you accept the inevitability of tort reform):

Maryland attorney Brian Nash doesn’t see anything wrong with the health systems’ legal approach. He has represented plaintiffs and doctors in medical liability cases and has been referred through MedStar’s lawyer list.

“The lawyers may make less, as does the cottage industry associated with litigation, but it truly is a loss that is well worth the price to get these matters resolved fairly, economically and timely,” Nash said in an email. “It is perhaps a form of tort reform that works for not only the health care industry but, more importantly, for the injured patients and families.”

The articles notes in closing that the Maryland State Medical Association is not a fan of the referrl system. Not so much because of patient protection or risk management, but because they say lawyers will not cooperate with them for “real reform.” the struggle continues ever onward.


Lactation is not a medical condition related to pregnancy, says Houston federal judge

Manual Breast Pump 2005 SeanMcCleanTexas once again distinguishes itself in the legal field. I sure do wish Texas would stop doing that.

U.S. District Judge Lynn N. Hughes of the Southern District of Texas recently granted summary judgment to a defendant in an employment discrimination suit brought by the Equal Employment Opportunity Commission on behalf of  Donnicia Venters. In a nutshell, Venters had worked at Houston Funding for about two years when she took maternity leave on December 1, 2008. While on leave, she says that she communicated regularly with her direct supervisor, asking if she would be allowed to use a back room of the office to use a breast pump while on breaks. She specifically wanted to use a back room that afforded privacy. She claims that the vice president in charge of such a decision reacted rather negatively, and that she learned she had been laid off when she attempted to go back to work in February 2009.

The EEOC filed suit against Houston Funding on her behalf, claiming that the company fired her in violation of Title VII of the Civil Rights Act of 1964. Title VII prohibits discrimination in employment based on a number of grounds including gender. Discriminating against an employee due to pregnancy or a related condition is considered a form of gender discrimination prohibited by Title VII.

Houston Funding countered that it fired Venters because she “abandoned” her job. The company claimed that she did not stay in contact with the relevant supervisors, and that after several months, a meeting was held and the decision was made to fire her. She learned of this on or about February 17 when she tried to return to work.

Judge Hughes, in granting summary judgment to Houston Funding, seemed to agree with their account of events. Nevertheless, the judge ruled that Houston Funding’s actions would not constitute discrimination whether they actually occurred or not. The statute only covers discrimination based on “pregnancy, childbirth, or a related medical condition,” he wrote in his opinion. A “related medical condition” could include “cramping, dizziness, and nausea while pregnant” (emphasis added). Since Venters “gave birth on December 11, 2009 [sic]…she was no longer pregnant and her pregnancy-related conditions ended.”

This is a rather strict reading of the statute. He seems to think that “or related medical conditions” only applies to “pregnancy” and not “childbirth,” which seems overly restrictive. My federal civil procedure is rusty, but it seems like there is a genuine issue of fact as to why the company fired her. He skips right over that and makes a blanket ruling that lactation is not a “medical condition” “related to” pregnancy or childbirth. I have a distinct feeling that many, many people who have directly experienced both pregnancy and childbirth will take issue with this characterization.

Of course, in a world where a significant number of lawmakers seem to think a medically-unnecessary invasive procedure that has put the word “transvaginal” into the national lexicon is hunky-dory, maybe I should not be surprised that a judge thinks he can redefine the medical processes of pregnancy.

Photo credit: SeanMack at the English language Wikipedia [GFDL], from Wikimedia Commons


Not Every Lawyer Can Bill 3,000 Hours in a Year. Most Lawyers Shouldn’t

A lawyer who got axed from his firm for allegedly failing to make his billable hour requirements has filed suit against his former firm, claiming they essentially required him to commit billing fraud:

A California lawyer who says he was fired from his law firm because he couldn’t meet a quota requiring 3,000 billable hours a year has filed an employment bias suit over his ouster.

The former associate, Richard Unitan, claims the unrealistic requirement forced lawyers to lie about their hours, the Los Angeles Daily Journal reports. Unitan, a Riverside litigator, claims he was essentially fired for not committing billing fraud.

A 3,000 hour billable requirement would require working about eight hours a day, every day of the year. Most firms require no more than 2,100 billable hours a year.

They say that for every hour a lawyer works, they can only bill 30-45 minutes of that time. To bill 3,000 hours would therefore require spending 4,000-6,000 in the office every year, or 11-16 hours per day. (I’m not sure who “they” are, but they talk a lot.)

Some lawyers can probably take to that lifestyle with gusto. Other lawyers might enjoy exercise, the arts, food, or having a family. Some lawyers might aspire to be an interesting human being outside of the context of their periodic review with the managing partner of their firm. Some lawyers might aspire to spending some of the waking hours of their day not tracking their time in 6- or 15-minute increments.

But then, most lawyers don’t get to work at the big fancy law firms anyway.


Jessica Ahlquist, Portrait of a Hero

Religious liberty (which includes both freedom of and from religion) won a big victory in Rhode Island this week, with a court ruling that a prayer banner at Cranston High School violates the Establishment Clause of the First Amendment and ordering the banner’s removal. At the center of the case is 16 year-old Cranston student Jessica Ahlquist, who stood up for her (and everyone’s) constitutional rights and has endured an ongoing litany of abuse and threats in response.

It is worth noting that this case is so straightforward a law professor might balk at even using it as a hypothetical in a first-year constitutional law class. A public school, in 1963, put up a banner titled “Prayer” beginning with an invocation to a “Heavenly Father” and ending with an “Amen.” Does it get any more prayerful than that? Faced with an almost-guaranteed loss, the school board decided to roll the dice with the funding that should be used to educate children, using it instead to pay lawyers to argue that their prayer is not really a prayer. Not surprisingly, a judge who has actually read several decades’ worth of Establishment Clause jurisprudence ruled in favor of Ahlquist. Also not surprisingly (but disappointingly), the backlash has been prompt and furious. The above link to the abuse heaped on Ahlquist is not for the faint of heart, nor for anyone who wants to remain blissfully ignorant of how some people can be.

Ahlquist’s supporters, of whom there are refreshingly many, are conducting a college scholarship fundraiser for her to make her future brighter than her present. Contributions will go to a fund set up by the American Humanist Association (of which I am a proud member). I encourage my reader(s) to stand in support of this brave young person. The world needs more people like her.

Related link: Ruling (PDF), Ahlquist v. City of Cranston, et al

Photo: linked from here.


Breach Ben Stein’s Contract (Allegedly)

Kyocera wanted a pitchman for some electronic product they are selling. They approached Ben Stein, who was in a funny scene in a movie 26 years ago, had a Comedy Central game show that launched the career of Jimmy Kimmel, and who has otherwise been a colossal embarrassment to all that is intellectually honest. They offered him $300,000 to appear in some commercials or something. Somehow, it took Kyocera three months to figure out that Ben Stein holds positions that are rather counter to the scientific mainstream (but that make him a darling, I’m sure, on the Republican cocktail party circuit) on the non-question of man-made climate change. So they withdrew their offer to him.

I have a few concerns about Kyocera here, in that they are an electronics company that apparently does not know how to Google someone.

The bigger issue is this: faced with the withdrawal of a proposed contract still under negotiation, Ben Stein sued, claiming not only breach of contract but violation of his religious liberties.

The complaint, filed on January 11, 2012, alleges that a valid contract exists between Stein and Kyocera because there had been both “offer” and “acceptance.” He claims that, although the parties had not signed a final contract, their agreement is nonetheless legally binding, in part because he had already changed his plans to accomodate Kyocera.

This sounds more like promissory estoppel to me than breach of contract, but that wouldn’t get him the full $300,000 value of the contract in damages. Still, any first-year law student will tell you that “offer” and “acceptance,” in addition to “consideration,” are fundamental components of a binding contract. (Second-year law students might tell you that it is a little more complicated than just that, but go with me here.) I therefore cannot categorically or snarkily dismiss a breach of contract claim in this case.

I can, however, snarkily dismiss his claim for “wrongful discharge in violation of fundamental public policy,” in which he claims that Kyocera’s withdrawal of their offer discriminates against him for his religious beliefs. He is basically asking the government to tell a business what to do on a matter (in his mind) of religious conscience. Don’t Republicans generally oppose that?

At least Stein has the honesty to admit that his questioning of anthropogenic global warming is based on religious doctrine and not any sort of scientific knowledge. I wonder if that was a deliberate admission on his part.

He throws in a claim for “intentional infliction of emotional distress,” because adhering to basic scientific knowledge obviously hurts his fee-fees.

This case has the hypothetical potential to put global warming denialism on trial, given that Stein either has to demonstrate that Kyocera dishonestly discriminated against a legitimate difference of scientific opinion, or he has to come right out and say it’s a religious doctrine and therefore not subject to the court’s (or Kyocera’s) review. Either way, science is likely to have a good day.

(h/t PZ Myers for the story)


The American judiciary is not an event-planning service

Caveat emptor. Just look it up.

Seriously, though, few things in life are probably as important as good wedding photos. Possibly food, and maybe oxygen, but wedding photos are a very close third.

So it should come as no surprise that, in the face of sub-par wedding photos, a groom would seek legal redress.

[O]ne groom, disappointed with his wedding photos, decided to sue. The photographers had missed the last dance and the bouquet toss, the groom, Todd J. Remis of Manhattan, said.

Actually, yes, it does come as a bit of a surprise, and here’s why:

[W]hat is striking, said the studio that took the pictures, is that Mr. Remis’s wedding took place in 2003 and he waited six years to sue. And not only has Mr. Remis demanded to be repaid the $4,100 cost of the photography, he also wants $48,000 to recreate the entire wedding and fly the principals to New York so the celebration can be re-shot by another photographer.

If that were all, this might be an amusing footnote to the history of human weirdness. But of course that’s not all.

Re-enacting the wedding may pose a particular challenge, the studio pointed out, because the couple divorced and the bride is believed to have moved back to her native Latvia.

In case you are wondering, Latvia is outside of the subpoena power of any New York state judge. I think it’s in Europe somewhere. A judge has already dismissed most of the claims, but will allow the breach of contract claim to continue. The photographer therefore likely has little risk of actually having to re-stage the wedding. Who could say what the damages would be for a breach of contract here, though? How does one put a price tag on an 8 year-old wedding that led to a divorce three years ago, with the wife moving to the other side of the planet?

History will decide. In the meantime, if you are looking to recapture memories of yore, bring your own camera and leave the courts out of it. Sheesh.


Save Sparks’ snark!

The Honorable Sam Sparks
The chief of the Fifth Circuit Court of Appeals has taken Judge Sam Sparks to task for his entertaining, albeit biting, recent orders (h/t Ronald W. Nelson):

Chief Judge Edith Jones of the 5th U.S. Circuit Court of Appeals is not amused. Texas Lawyer obtained a copy of an email she sent to Sparks advising him to think before he writes. “Frankly, this kind of rhetoric is not funny,” Jones wrote. “In fact, it is so caustic, demeaning and gratuitous that it casts more disrespect on the judiciary than on the now-besmirched reputation of the counsel.”

The rhetoric, Jones said, suggests that Sparks is “simply indulging himself at the expense of counsel” or that he is fighting with the lawyers. “No judge who writes an order should allow such rhetoric to overcome common sense,” she wrote.

It may very well be the case that the “kindergarten party” order was the result of residual frustration over the sonogram lawsuit, and that he was making an example by picking on two lawyers out of the many thousands who use the courtroom to resolve relatively inconsequential disputes. Perhaps that is not, in the grand scheme of things, appropriate for a Presidentially-appointed member of the federal judiciary.

But dangit, it entertains me, and isn’t that what’s really important?

Posted with WordPress for BlackBerry.


“Bad mothering” can lead to even worse lawsuits

The world is full of bad parents. Some parents give their daughters a new car that’s the wrong color. Others lock them in the basement and father multiple children by them over decades. There is obviously a vast, yawning gulf between those two examples, but I think it is fair to say that the legal system only needs to intervene in cases closer to that utter waste of genetic code from Austria.

Others may disagree with me.

Others like Steven A. Miner II and Kathryn R. Miner, feeling dissatisfied with a childhood free of basement imprisonment but also devoid of clever birthday cards, may decide to sue their mother, Kimberly A. Garrity, for the emotional distress caused by  such omissions (h/t Geri Dreiling).

What horrible acts gave rise to their claim? The Chicago Bar Tender blog reported at the time the suit was filed:

- Garrity will invite one child to an event without inviting the other.

- Garrity would purchase things for Kathryn without purchasing anything for Steven.

- Garrity offered to provide college financial assistence to Steven and not Kathryn.

- Garrity did not provide Christmas or birthday gifts to Steven from 1996 through 2005 or Kathryn in 2007.

- When Steven took back a popsicle jewelry box he made Garrity, she called the police because she asserted there was a diamond necklace in it.

- Garrity told Steven that if he didn’t wear his seatbelt, she would drive to a local police station and tell the cops.

- Garrity smacked Steven on the head for no reason in 1994.

- Garrity did not provide “so much as a care package to Steven while he was away at college, while other parents send their children items and packages on a continuous basis.”

- Garrity “refused to assist Kathryn with the purchase of a dress but, provided Kathryn with the use of an automobile for homecoming; and then proceeded to contact her at midnight while she was with her friends and made her return the automobile.”

Photo by Scott Liddell

I picture the Miners' childhood being exactly not like this (photo by Scott Liddell)

I read the complaint, and while it sounds like there was certainly a strained relationship between the children and their mother, nothing sounds too different from the thousands (if not millions) of other children of divorced parents around America. Some of the allegations relate to payment of child support and reimbursement of medical expenses, claims usually made by the other parent or the state (but maybe Illinois is different). Lest you wonder where their father has been through all of this, don’t worry. He’s one of the kids’ lawyers.

Maybe their childhood really was pretty awful. I know for a fact that it is hard to view one’s own childhood through a perfectly objective lens. We tend to remember our childhood with a child’s mind, not a rational adult mind, no matter how old we are. Still, once you are an adult, you are supposed to be able to deal with life on life’s terms, or to seek help from those qualified to offer it. A crappy childhood is not an excuse for misbehavior as an adult (except in some pretty extreme circumstances). The plaintiffs in this case are adults–barely adults, but adults nonetheless. They don’t need a lawyer to confront their maternal abandonment issues. They clearly need better therapists. However bad their childhood may have been, this is not the way to deal with it.

This is really, I suspect, just a case of a post-divorce parenting plan that did not work out very well. Happens all the time. It doesn’t sound like Garrity would have ever won any mothering awards, but that’s not exactly actionable. They allege some abuse by the mother but never really delve into it. Is this some contorted way of confronting real childhood demons, or a couple of teacup children acting out? I guess we’ll never know.

And what the H-E-double-hockey-sticks was their dad doing helping with this???

The case was dismissed, and the plaintiffs appealed. No, really.

An appellate court dismissed the appeal this week, renewing some semblance of my faith in our judicial system.

“Such alleged actions are unpleasant and perhaps insensitive, and some would arguably fall outside the realm of ‘good mothering,’ but they are not so shocking as to form a basis for a claim for intentional infliction of emotional distress,” said Judge Kathy Flanagan in a court statement, adding that ruling in favor of the children ”could potentially open the floodgates to subject family child rearing to … excessive judicial scrutiny and interference.”

Garrity’s lawyer had some choice words as well:

In court papers, Garrity’s attorney Shelley Smith said the “litany of childish complaints and ingratitude” in the lawsuit is nothing more than an attempt by Garrity’s ex-husband to “seek the ultimate revenge” of having her children accuse her of “being an inadequate mother.”

“It would be laughable that these children of privilege would sue their mother for emotional distress, if the consequences were not so deadly serious” for Garrity, Smith wrote. “There is no insurance for this claim, so (Garrity) must pay her legal fees, while (the children) have their father for free.”

On very rare occasions, “loser pays” doesn’t sound like such a bad idea.