Regarding warning labels (Dec. 8, etc.): I received a medication information leaflet for a new medication from the Wal-Mart pharmacy. It read: "contact your physician immediately if you experience confusion or loss of consciousness". (The medication is Phos-Lo).
BTW, great blog. Keep it coming; I look forward to reading it.
-- Jeff Sheridan, Berwick, Pa.
I read the WSJ piece about patent enforcement (see Sept. 16) and I don't get it. I understand that the plaintiffs are persons who do not manufacture the good that has been patented, but so what? I am not getting an impression that there's something wrong with the system, e.g.: (1) the law makes it too easy to determine that someone has infringed a patent; (2) there is a problem in the way that the scope of patents is defined such that persons who really have not infringed are being charged with infringement; or (3) these suits are entirely frivolous (i.e., there's no reasonable question that infringement took place) and yet plaintiffs aren't being sanctioned for their bringing these suits (an example of which would be the case you cite in which the court threw out a claim on statute-of-limitations grounds).
All I'm getting is that Inventor, after properly patenting Invention, sells the patent rights to Enforcer. Enforcer uses the legal system to protect the patent from infringement by Big Manufacturing Conglomerate. Now, I don't know where Enforcer is getting the money to pay Inventor, or (if Enforcer is getting the money from his enforcement efforts), Enforcer is giving Inventor more money than BMC would pay.
But let's assume that's the case.
What makes BMC think that it's OK to infringe on a patent just because Inventor is not making the product himself? It's none of BMC's business. Whether Inventor is or isn't making the product, BMC may not infringe.
And if BMC wants the patent so bad, why doesn't it buy the patent? Or, if Inventor did such a good job with his invention that BMC can't make what it wants to make without using the invention, and it's not willing to pay what Inventor wants, then BMC should make something else. Sorry, but that's life. I'd love to make and sell iPods, but I'm not allowed to.
Then, with fewer infringers, Enforcer can't pay so much for inventions and Inventors have an incentive to market their inventions or to sell them to someone who will make something.
In other words, this problem sounds like one that is entirely the responsibility of Big Manufacturing Conglomerate; if BMC would follow the rules, the market would cause the problem to go away.
-- Barton Jacka, San Diego
If anyone wants to probe the "chilling effects" of copyright lawsuits and the nasty techniques IP lawyers use against writers and publishers, feel free to contact me. I fought the Tolkien estate for over a year for the right to publish my Lord of the Rings chronology, Untangling Tolkien (available on Amazon.com). I won a nice out-of-court settlement agreement that lets me talk about everything but the settlement. And I love to talk about what's wrong with the current system.
-- Mike Perry, Inkling Books, Seattle
I am writing to comment about your remark (Reason, Nov. 1997) "Already, Cincinnati is reported to have enacted a municipal ordinance declaring 'Appalachian heritage' to be a legally protected category in hiring and firing. When heading for the job interview, pack your dulcimer."
Although I respect your credentials & you are apparently well-known, you are dead wrong about this particular issue. Yes, indeed discrimination DOES occur as the result of Appalachian heritage & dialect. By dialect alone, the person of Appalachian heritage is distinguished as soon as he/she opens their mouth......and judgments are made that Appalachians are ignorant, poor, inbred & barefoot. The media (& filmmakers) has propagated this misconception. I should know, I am Appalachian-born, the daughter of a coal miner, and very proud of my heritage. I am a registered nurse, have a college degree (as do both my children) and have traveled the U.S. I find this discrimination in "pockets" across the U.S. I view it as evidence of ignorance, regardless of the high-brow circles from which it occurs, and am glad I don't live & work in these areas.
No, I don't "pack my dulcimer" (as you suggest) when I head to an interview, but I enjoy this traditional Appalachian instrument & hope to learn to play it myself someday--it is a delightful instrument. I also enjoy classical musical instruments & opera--because my interests and talents are much larger than the region of my heritage. Perhaps unintentionally, this remark evidences that you also have pre-conceived notions about Appalachia. Contrary to beliefs about the lifestyles in this region, we don't all sit on the porch in the evening, chewing tobacco & strumming a Dulcimer. So I challenge you--before you write another book or appear on another TV show -- to lose the suit & tie & actually come to the Appalachian regions of this country for a visit. If you come with a truly open mind & take an inside look, you will take away a new respect for this heritage.
In your zeal to propose that the discrimination issues have been carried too far, remember that you will never walk in the same shoes & therefore cannot possibly know the real discrimination that still occurs.
-- Pam Baker, Lexington, Ky.
I am the teacher in your post of Mar. 26, 2001. The injury occurred November 20, 2000. Five years later, I have had 7 (yes, seven) surgeries. Each surgery resulted in a loss of 3 weeks of teaching. Over the years, I have suffered from the irresponsible choice an angry parent made over her son's grades. My students were affected as a result of multiple and lengthy absences. I continue to take medication for inflammation and pain. I have ugly scars on my forearm, wrist, and palm. Did I receive the $250,000 originally asked for in the claim? Not even 10%. How's that for justice? My lawsuit was never superfluous, nor was it irresponsible. I resent my name and litigation information being present on your site. Please remove it. It does not belong there. You have not done your homework. -- Traci England
Our original one-paragraph item, based closely on (and mostly quoting) the Salt Lake Tribune's coverage, was in no way inaccurate and in fact prominently mentioned the aspects of the story that put Ms. England's claim in the most sympathetic light. We appreciate the update informing us that the claim won only a small fraction of what Ms. England's lawyer originally demanded for it, although it is far from clear why that should make our posting of the paragraph look like a mistake in retrospect. To clear up two other possible misconceptions: 1) even a short browse through this site should be enough to see that the description of a case here does not invariably mean that we regard it as "superfluous" or "irresponsible", and 2) because our legal system does not provide for secret lawsuits, when one files a public legal action one is apt to find one's name and "litigation information" reported on by both newspapers and websites. That's just the way things work. -- W.O.
An additional note on the $22.6 million settlement (Nov. 8) of a claim by a family in Manhattan Beach, Calif. (which is local to me) that moldy lumber caused their son's autism:
The suit blames Crenshaw Lumber for not tarping their inventory. Well, guess what? Nobody in the area does that, for the simple fact(s) that:
A. It doesn't rain very often.
B. Lumber inventory turns over very fast due to the high volume of building and remodeling that takes place in the South Bay.
C. Even if it does rain, the best solution is to just let the lumber sit and dry out in the sun that will be coming out the next day (and the next, and the next, and ....)
However, once the lumber is delivered to the site, Crenshaw Lumber has no control over its further disposition.
Buildtimes in the South Bay seem to average about 6-8 months, and in many cases more, four years in one instance I know of. During that time a construction site can be blasted by rain -- and I do mean blasted -- two, three, or four times, or even more, by the Pacific storms that routinely sweep through the beach cities during the winter and spring. (In addition, the constant moist salt air does its bit too. Steel is rusted out in two years, and that's even if it's galvanized.) Yet -- and this is generally speaking -- I've yet to see a builder tarp a site to keep it dry during these seasons.
So, claims about mold causing autism aside (total B.S.!), is the lumber being "wet" and "causing mold" really Crenshaw's fault, or is it the result of a combination of factors - lengthy buildtime, seasonal storms, moist salt air, builder practices, and perhaps also the modern trend toward well sealed houses that can't and/or are not allowed by their owners to air out?
As an aside, I was struck by Gorman's comment that now he could "build a really nice house." The houses in that area already ARE really nice. What he's implying, I believe, is that the house he bought -- he didn't commission it initially -- was not as nice (or as big) as he wanted (or could afford). But now he can afford it.... -- Vic Benstead, Rancho Palos Verdes, Calif.
I'm one of the students that lived in Madison, Wis. during the period the taverns conspired to fix prices (May 2, 2005, Mar. 29, 2004).
What I thought might interest you is that we've had riots 3 years running during the famous Halloween party on State St. This year, the city government and university have asked the bars in the area to close early to help prevent riots for a fourth year. Shockingly, the taverns have grown a backbone and said no.
What lessons can we draw from this? When acquiescing means they stand to make money, the ruthless city government is just *too mean* to withstand, but when listening to the same officials means the taverns will lose money, well, that's an entirely different matter. Shocking how they've grown a backbone when they can't use the city's request to steal money from folks, eh? I'd say that pretty well undermines their claim they were coerced to raise prices.
Now, having this firm sue them isn't ideal, but since no one else is stepping up to the plate to make these people pay for what they did, I'll take what I can get. -- Earl Hathaway, Madison, Wis.
I taught a class in Civil Liability for Law Enforcement this first summer session and I used your site often to highlight some of the general principles (as well as more specifically regarding the police-chase liability phenomenon). Not only is your site interesting, but it's useful and -- dare I say -- good for you! -- Troy Hinrichs, Riverside, CA
My first thought at reading the articles you linked to in your "Detroy Marshall v. Burger King" post (Aug. 3), which were written by Anthony Marshall of Hotel & Motel Management, was that they were satire. For if they were, I would have complimented the writer on a sharp satirical tongue. However, after reading more I realized -- this guy is for real.
I found it funny to read an article calling for the end of tubs which included Mr. Marshall's list of features that his ideal shower would contain:
1) the threshold to the shower is made obvious by lighting or coloring so I see it and don't trip; 2) the flooring has an abrasive, nonslip-surface construction; 3) safety grab bars are installed on one or more of the shower walls; 4) bath mats, where appropriate; 5) all hot/cold water faucets or mechanisms have handles for easy gripping, no slippery knobs and large print instructions; 6) solid soap holders don't drip slippery wet soap goop onto the shower floor; 7) no soap dish holder unless it can withstand the weight of an emergency grab by a falling bather (this applies to inside shower towel racks, too); and 8) safety glass. I'm surprised I don't see suggestions for a rubberized shower floor.
One thing I found amusing is how many of Mr. Marshall's articles involved first person accounts of his near-fatal encounters with hotels. Chevy Chase might be safer at the local Ramada Inn than Mr. Marshall. -- R. Bennett, Baltimore
As an attorney I wanted to point out that it is not just jury verdicts that are driving up the cost of insurance and of doing business. While verdicts contribute to the picture, the process of litigation itself generates enormous costs.
Take a class action against an major insurer or manufacturer. Plaintiffs will conduct extensive discovery seeking to prove the existence of a claim and to identify the dimensions of the class in question. Given the need to search for and review the relevant documents and electronic files before production, the target company may spend millions of dollars a month defending such cases, whether or not the underlying claims have merit or not. Many costly additional steps are needed to protect the client from inadvertent disclosures and to protect others from privacy invasion, which itself might spawn more litigation.
The defense of product liability cases incurs similar costs before getting to the question of what the real flaw in the product is or may be. Enormous sums are spent on discovery of documents and deposing experts. A whole support industry has sprung up to feed resources into litigation. Liberal discovery and pleading rules in most states run up costs by allowing a plaintiff to file a suit and then attempt to discover from the defendant's documents and employees what his claim might be.
The real people getting rich in all of this are the lawyers on both sides, while the costs impact businesses large and small as well as public entities such as school systems. No one seems to be talking about the fundamental alterations in the system we need. -- Jay Strickland, Georgia
As one who myself has suffered what I believe to be wrongs at the hands of attorney Paul Minor, the news of the acquittals and non-convictions in the Mississippi judicial bribery trial (Aug. 12, Aug. 15) left me with a sad feeling that injustice has prevailed and that Pierre Proudhon was right when he wrote: "Laws: We know what they are, and what they are worth! They are spider webs for the rich and mighty, steel chains for the poor and weak, fishing nets in the hands of the government."
In a newspaper interview, juror Shirley Griffin confessed her bias against the government and that she had refused to consider the evidence, "All that stuff the government brought back there was trash, all them boxes full of papers." Griffin also defended her refusal to consider the government's case by saying she had made up her mind from the beginning that the defendants were not guilty, "From the first day, I could have taken that pad and wrote not guilty all the way down it." But Griffin took an oath to listen and consider the evidence and to rule without bias. She did not do that, which may have given reason for the other two jurors to refuse to honor their oath as well. If anyone wasted federal taxpayer dollars, it was Juror Griffin who should have never sat on this jury and Judge Wingate who should have removed or sanctioned any jurors who refused to honor their oath to uphold the law.
U. S. Attorney Dunn Lampton's claim that he was satisfied that the trial exposed corruption, even if it did not result in convictions, is not enough. The Justice Department must see that violators of federal laws are brought to account. I sincerely hope the department retries the remaining counts against Minor and Judges John Whitfield and Wes Teel. If it does not, every state justice system is at risk. -- Nancy Swan, Mobile, Ala.
Thank you for covering the successful effort by state senator Andrew McDonald (D-Stamford, Darien) to bail out the Koskoff, Koskoff & Bieder law firm through a special legislative fix in Hartford (Aug. 11). McDonald, who co-chairs the judiciary committee and is himself a trial lawyer, has been one of the biggest obstacles to medical liability reform in Connecticut. According to former state Democratic party chair George Jepsen, McDonald is a rising star of his party and will one day be governor. -- Leonard Ferrucci, New Canaan, Conn.
Find the common theme in these three paragraphs:
From a biographical page:
John Paul Stevens was born on April 20, 1920, in Chicago, Illinois, as the youngest of Ernest and Elizabeth Stevens' four sons. Stevens grew up in a wealthy family. His father made a fortune in the insurance and hotel business and owned the Stevens Hotel, which has since become the Chicago Hilton.
From an AP story on the case of Kelo v. New London:
"The specter of condemnation hangs over all property," O'Connor wrote. "Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory." ...City officials envision a commercial development including a riverfront hotel, health club and offices that would attract tourists to the Thames riverfront, complementing an adjoining Pfizer Corp. research center and a proposed Coast Guard museum.
-- Bob Emery, Metairie, La.
I was notified by email recently that I am a member of a class whose members include those who had ordered free business cards from Vista Print. Apparently the lead plaintiff thought that the shipping and handling fees ($4.95 for 250 cards) were excessive. I believe the counsel is Edwin Schreiber, whose name I could not find on your site.
According to the email, it seems that my only options are to opt out of the lawsuit, presumably for the purpose of pursuing my own damages, or be included by default. I am not looking for free legal advice, but having no beef with Vista Print, do I do the productive business community a better service by exempting myself from the class or by sticking around to bear witness to this kind of nonsense?
-- David Witkin, Irvine, CA
This may possibly be the single question we most often get asked by readers in letters to the editor. I have a few ideas as to possible answers, but in the mean time I'll open the comments section for (polite, to-the-point) reader discussion of the question. -- W.O.
The Washington Post reported Apr. 27: "Sodexho Inc., the Gaithersburg-based food and facilities-management company, agreed Wednesday to pay $80 million to settle a lawsuit that claimed it systematically denied promotions to 3,400 black mid-level managers."
On Steve Sailer's website, he published a very interesting reader observation on this lawsuit (scroll to end of article): "Well, I think I know of the next company lead attorney [and white man] Kerry Alan Scanlon can target: his own law firm, Kaye Scholer, whose numbers are similar to Sodexho's! I just clicked on all their attorneys, about half of whom had pictures on their law fim web pages and half of whom did not. Of the 102 Kaye Scholer attorneys who have photos, guess how many are black? Answer: same as the number of 188 top jobs held at Sodexho, whom Kaye Scholer just successfully sued for their lack of African-Americans in top jobs. Zero." -- John H. Smith III, armed services, Wiesbaden, Germany
This is also a good example (scroll) of a case that has no business being a class action.
Kaye Scholer, like virtually every major large firm, participates in NALP (www.nalp.org) which surveys precise racial breakdowns. Some details can be found here and here. -- Ted Frank
Regarding your article of May 10, I can confirm that the case was indeed handled by the Norwegian Supreme Court and that Conoco lost. The court found that porno surfing during work hours was an unlawful act, but that firing the workers was an unreasonably hard sanction. It should be added that Norway has very protective employment law in favour of the employee compared to the US.
Further the Norwegian Supreme Court can take on all cases, including speeding offenses. The right to appeal depends on whether the Supreme Court after a summary review of the judgement from the lower court, finds the judgment to be wrong or of principal interest. In most cases appeal is denied. Such a system is practicable in a country with 4.5 million citizens.
Norwegians are however probably less litigious than Americans. The reason for this is probably that the main rule is that a party has to pay the legal costs of his opponent should he lose. Attorneys are further not allowed to charge their fee as a percentage of what the client receives. The damages in tort cases are generally far lower than in the US. The main rule is that the injured party only can claim coverage of the economical loss. My impression is also that we to a much more limited extent are able to bend the law compared to US lawyers; this is very noticeable in cases where we are acting for US clients represented by an American lawyer.
-- Eirik Vinje, Attorney-at-law, Oslo, Norway
A few years ago I was engineering a lifeguard tower in a South San Jose park. They wanted to install a water closet so the lifeguard would not have to be away from his post too long. We were told it still had to be wheelchair accessible, even though you would have to carry a wheelchair up, so no john. -- Walter E. Wallis, Palo Alto, Calif.
You quote the researchers (May 1, letter May 10):
The implication, says Dee Wood Harper, one of the researchers and a professor of criminal justice at Loyola University in New Orleans, is that "if this mindless software can determine who is going to die and who is not going to die, then there's some arbitrariness here in the [United States justice] system."
They have it backwards. The fact that "mindless software" can accurately predict outcomes is evidence that those outcomes are *not* arbitrary, but closely follow the kind of simple rules that can be programmed into a computer.
Whether this is a good thing, or not, is still a valid question. -- Kent Budge, Los Alamos, N.M.
Thanks for reprinting Stuart Taylor's letter to the Washington Monthly, which was very informative. I believe the heart of our litigation problem in this country is the belief in the magical powers of the jury. You had a quote from a plaintiff lawyer stating that while a jury seldom understands the medical issues in a malpractice case, it can accurately judge credibility. The Taylor letter cites research indicating that claims against doctors "are unfounded in as many as 80 percent of the cases" (I believe that number to be too low.) It doesn't seem obvious to me that by taking the oath of a juror someone suddenly acquires outstanding skill at judging credibility.
Whether the tort system costs a lot of money (as you and I think) or a rather small amount (Senator Kennedy's position) is an interesting question, but it is not the test we would apply to, say, capital cases. If 80% of persons hauled into court as criminal defendants on capital charges were wrongly accused, the risk to any one of us of being wrongly charged (or, after further errors, wrongly put to death) might still be trivially low, but we would still consider the system intolerable. I do not want a large sector of the civil-law system to have an 80% mistake rate, especially when that mistake rate includes false charges against people who devote their lives to treating the ill. "Your ineptness caused this child's disablement!".
Thanks again for overlawyered.com. -- Bill Nuesslein, White Plains, N.Y.
Regarding Johnnie Cochran's life and career (Mar. 30): My job at the time allowed me to watch most of the fiasco that was the OJ trial. Although Cochran did an adequate job defending OJ, and a very good job arguing the case at the end, the real credit for the verdict goes to the two main prosecutors. Through their bungling and murky case presentation, they made a not guilty verdict possible. Much abuse has been heaped on the head of the jury, but in my mind, the verdict was justified due to the ineptitude of the prosecution.
I also found it most interesting to watch the court proceedings and then watch the news coverage of the same. Sometimes it felt like we were watching different trials. Nothing points up the ineptitude of the press more that watching them report on something about which you are familiar.
The OJ trial was fun to watch, but I'm sure glad I don't have to do it ever again. -- Les Weil, Rio Rico, Ariz.
Your discussion of the death penalty (May 1) seems fairly clearly to imply that it is not carried out in an arbitrary and capricious manner. Since I had the great good fortune to be appointed to handle a death case several years ago, I can attest that it is the most intellectually dishonest body of law I have ever seen.
For example, as I'm sure you know, Gore and Campbell give defendants in civil cases a federal due process right to de novo proportionality review of punitive damage awards to make sure that the award corresponds to the reprehensibility of the conduct. A person facing a death sentence has no federal right to proportionality review. How can a money judgment for punitive damages merit greater due process protection than a death sentence?
Then I read your post on Point of Law criticizing medical malpractice cases as serving no deterrent function because the results are basically random. I'm sure that's true but I don't understand how you can assume that the same judges and the same system are going to function any better in capital cases than in medical malpractice cases. I believe it was George Will who reminded conservatives that the death penalty is just another government program. -- Mark Arnold, St. Louis, Mo.
1. Without getting into a discussion of the soundness of Gore and Campbell, I would disagree that there is no proportionality review; the Supreme Court struck down capital punishment for rape in Coker v. Georgia, for felony-murder in Enmund v. Florida, and for retarded murderers in Atkins v. Virginia.
2. I don't disagree that there's a lot of intellectual dishonesty in death penalty law. My preference would be to have capital punishment administered in an intellectually honest way such that its deterrent value would be less ambiguous. And I do believe that medical malpractice suits have deterrent value, I just believe that the negative incentives outweigh the positive ones; I don't see capital punishment, as currently administered, creating incentives to avoid socially productive behavior. Several days a week, I also subscribe to the notion that there are some crimes sufficiently heinous that a moral society would not suffer the criminal to live, but that's just an unquantifiable gut reaction from reading about the crimes committed by death row inmates.
It's a tough question all around. Thanks for writing. -- Ted Frank
Like you, I have been following coverage of the fen-phen frauds exposed here in Mississippi (May 8), and yet I have never seen any reference in any paper in the state to one of the most obvious questions raised by the scandal: what happened to the contingency fees pocketed by the original plaintiff lawyers? Yes, the fraudulent claimants must pay restitution, but do the lawyers get to keep money which in retrospect was paid only because of fraud? Or are they having to return it? The question never seems to come up in the reporting, but I don't know why. -- S.W. Bondurant, Grenada, Miss.
Regarding your Apr. 19 item on the gambler suing the Atlantic City casino: I don't know about you, but I find the culture of "addictive personality" increasingly irritating. The case is on a par with people claiming that they ran up credit card debt because the banks kept sending them applications saying they were pre-approved for a card -– I get 3-4 of them a week and they go right into the shredder. The fact that this man was already gambling when the Borgata official approached him makes it that much more galling. Nowhere in the article did it indicate that this gentleman was taken to the CCC offices at gunpoint. When on earth are people going to start taking responsibility for their own actions?!
As for this man claiming that he was not served with process, the default judgment against him can be dismissed as a matter of law within one (1) year of it being entered. He and his ex must be on lovely terms if she indeed failed to inform him that he was being sued.
I love what you do, and I've been a litigation paralegal for 15 years. Far from bashing our industry, you bash those who give it a bad reputation. -- Jocelyn Cornine, Lake Hiawatha, N.J.
Regarding legislative proposals to prohibit drug store owners from firing pharmacists who refuse to dispense birth control on religious grounds (Apr. 13, Apr. 28): it is one thing for a store owner to decide not to sell a given product, which should be his or her right. However, if I owned the drug store I would like to employ pharmacists who would dispense the products I carry. After all, that is how I make my living. Can I no longer make this a condition of employment? And where does this stop? People have perfectly reasonable religious objections to all kinds of everyday items -- alcohol, tobacco, pork, shellfish, all meat, bread at certain times of the year. If I own a grocery store do I have to employ clerks who refuse to ring up, say, bacon or beer, because their religion opposes such things? -- James Ingram, Philadelphia, Pa.
I hate to say this, but the area of police chases (Mar. 15, Mar. 29) is one where the system seems to have worked. Here in Canada, and specifically in Alberta (the most American of our provinces), there was a long history of horrific crashes during high-speed chases. Although it's not so litigious here, the inquests and inquiries were very nasty and protracted (with many billable hours for many lawyers), and there were some suits (still a couple dragging on), though I suppose all somewhat small change by U.S. standards. Prodded by this, the incidents have been substantially reduced, by deliberate effort on the part of the police.
It turns out that buying the cops a couple of helicopters sharply reduces the danger (pretty hard to run from, especially if you can't see them, and they can see you, thanks to high-tech). That, and the cops basically realizing that either a) the very risky high-speed chase simply isn't worth it on a petty charge, and b) on something serious, you're gonna get him anyway. Short term, do some copters and road-blocks; longer term, good old fashioned foot work, and ultimately SWATs. So it takes a day or two or three or a week or two in extreme situations. The real world isn't Hollywood, and less dramatic but more sure police methods are, well, more sure. Nobody I am aware of has gotten away with murder because they drove away very fast after being seen by police. There turn out to be few if any situations where a high-speed high-risk chase is in any way necessary.
Sure, if a bad guy knows that the police will chase him hard, he might be a little more likely to pull over. But these guys aren't very rational anyway, and tend to believe Hollywood themselves, where they are supposed to escape, or anyway walk away from horrific crashes. Why put more people at risk? I've known a few people that died in these things, cops, criminals, and civilians, and it has never been worth it.
On the other hand, there is no way on earth that an individual cop should be burned for doing what he is told is proper practice. This is one situation where the policy makers absolutely should be on the hook, and off-putting punitive damages actually make sense. -- Rob Bray, Calgary, Alberta
I certainly don't oppose efficacious chasing by helicopters. In the California case, the car was stolen and already being driven dangerously when the officer began chase, so I question how petty the chase was. Too, in my mind, someone willing to drive 110 mph the wrong way down the highway and cause multiple accidents demonstrates that they were especially dangerous to begin with. I don't know how valid the "if it's something serious, you're going to get him anyway" argument would prove in a case where the vehicle is stolen and the police don't know ex ante whether the perpetrator will be identifiable.
In addition, if we as a society decline to make millionaires of the crime victims who are killed and injured by those police fail to catch for lack of effort, but do compensate those injured because their injurer was trying to escape police, I worry about the incentives not just for criminals, but for police departments to do their jobs. -- Ted Frank
Your website seems to bash plaintiffs' lawyers, but fails to give equal time to defense firms who are equally culpable in the U.S. litigation disaster. Since defense firms typically get paid by the hour, most are reluctant to even think of talking settlement until late into the case, even when there is a meritorious claim that can and should be resolved up front. In a not unusual scenario, Plaintiff with an injury worth $50,000.00 and 50% comparative negligence (typical auto accident) asks for $1,000,000.00 in the Complaint. The defendant offers nuisance value. The parties duke it out, and eventually they settle for $40,000.00. $10,000 in litigation expenses get s taken off the top, the plaintiff's attorney gets his 1/3 leaving the plaintiff with $20,000. The defense firm bills the insurer $30,000.00 and justifies the result against the backdrop of the original amount sued for. Plaintiff's attorney then files another suit because there are plenty of plaintiffs where that one came from, and the cycle repeats. Everyone loses but the lawyers.
I was attending a settlement conference before a U.S. Magistrate Judge, and the first question he asked was "[w]hat are the impediments to settling this case?" Plaintiff's attorney blurted out "[d]efense counsel has not yet billed his client $100,000 in legal fees." Although the Magistrate, on the record, was not amused, he clearly knew that the statement was true and used his influence to steer a settlement for an amount commensurate with the damages. -- Victor M. Serby, Esq., New York, N.Y.
I have GoogleAds on my site. Google selects ads for a blogger by finding keywords on the site. Since I went on a rant about lawyers, it picked this ad regarding class action lawsuits, which I thought you would find funny in a sad sort of way. -- Gordon, Cranky Neocon
My family owns a pipe, valve and fitting distribution company in Pittsburgh, which employs 25 people. This small company has been inundated with asbestos related lawsuits over the years. The most recent suit, which was settled on the day of trial, arose because the plaintiff found an ad in the 1951 Yellow Pages, which included insulation as part of the company's product line. We did not own the company until the mid 1950s, although we retained the name of the orginal company. At last count, we have 30 pending suits against us.
We are not manufacturers and have never sold insulation material. One might ask why the manufacturers are not being sued, but as you know, most of them have had to declare bankruptcy because of the large judgments against them.
A lawyer in Pittsburgh seems to be on a mission to flush out potential plaintiffs. Our company will potentially reach a point at which its coffers are empty. Our insurers have caps on their payouts; we, therefore, may find ourselves in the position of having to settle these cases out of pocket.
At some point, we will have no more money and will have no recourse but to declare bankruptcy and add 25 loyal employees to the ranks of the unemployed.
This problem is affecting many small businesses, primarily in the Northeast and on the Gulf Coast. Although I no longer have a financial interest in the family business, having sold my stock to my brother several years ago, I continue to have a great personal interest in the company that my father essentially built from the ground up. It is clear that something must be done because we, too, are victims of a "crime" we did not commit. -- Susan S. Becraft, Pittsburgh, Pa.
Letters to Overlawyered (occasionally) get results: knowing that reformers in D.C. have been attempting to document the impact of asbestos litigation on small businesses, we passed along Ms. Becraft's note (with her consent) to some staffers at the White House, who proceeded to get in touch for what she reports were "fruitful discussions". Nothing of course has happened yet in Congress -- at last report legislative discussions were stalled -- but the national press has finally begun taking note of some of the unjust and extreme consequences of the asbestos litigation morass, including its effects on smaller defendants. -- W.O.
You've covered (Dec. 12, Jan. 8) the exploits of Jarek Molski, perennial plaintiff in disabled-rights cases. Let me also bring to your attention Matt Lakota, who has sued at least 120 small businesses (including one of my clients) for parking spot infractions and other alleged disability rights violations. For more on Lakota's antics -- which have included writing false parking tickets for people he claims were illegally parked in handicap spots, and then pocketing the $280 fines, a stunt that earned him a conviction on several charges -- see coverage in the Chico News and Review, Sept. 12, 2002, Jul. 15, 2004, and Dec. 16, 2004. Incidentally, my client and I just went to court and won -- Lakota's case was dismissed with prejudice. -- Jeff Aran, Attorney at Law, Sacramento
In the debate over medical liability you sometimes hear lawyers talk as if doctors who get sued but eventually emerge victorious have no real ground for complaint -- after all, the system has worked the way they say they want it to, what more can they expect besides vindication? I would like to offer my experience in hopes of shedding light on that question.
As a plastic surgeon, I was repeatedly named as a defendant during the litigation over alleged harm from silicone breast implants. It has now been proven scientifically that the implants did not cause the alleged disease. The implant manufacturers were the primary ones sued, but lawyers also named the doctors as defendants, even though they acted in reliance on manufacturers' word as to the implants' safety. Eventually all the cases against me were withdrawn or dismissed, but the experience of being a defendant went on for more than 15 years.
Was I harmed? Leave aside any effects on my insurance; leave aside the mental stress and the inconvenience of depositions, etc. Did you know that Fannie Mae -- and therefore lending institutions -- will not allow you to get a home mortgage or refinance if you have this kind of suit pending? I was turned down by more than one bank. Texas is a community property state and we finally got around this problem by separating our community property and having my wife borrow in her name alone.
I have no doubt that I was harmed, even if our legal system does not recognize the wrong or give me any remedy. -- name withheld by request, Texas
Regarding your coverage (Mar. 8, Mar. 15) of pet owners suing for large sums over the death of their animals: You'll probably see this Illinois $100,000 loss-of-cat story around, but I hope you won't miss the lawyer's quote, which is to my mind the inadvertently perfect summary of the larger problem:
[said Anzalone's attorney, Amy Breyer, who specializes in animal law:] "The point of trying to recover monetary damages is to establish for the whole world to see that this relationship had value," she added. "This shows it's not OK to say 'it's just a cat -- get it out of my face'."-- Chuck Shepherd, News of the Weird
You are falling for U.K. party politics in citing the supposed legal limitations on people's ability to defend themselves and their homes in the U.K. (Dec. 8). It is not for nothing that the Daily Telegraph is known as the "Torygraph".
It is true that people are only allowed to use "reasonable" force but it is very rare indeed for anybody to be prosecuted for using "unreasonable" force.
There is one cause celebre which has provoked this debate. A man named Tony Martin was convicted of murder (later reduced to manslaughter) for shooting a burglar. But the burglar was shot in the back as he was running empty handed out of the house. We have never had the death penalty for attempted burglary. -- Jeff Richardson, London
For similar arguments, see Australian blogger Tim Lambert, Jul. 16, 2004 and Feb. 3, 2005. The Crown Prosecution Service guidelines on cases of this sort can be found here. We covered the Tony Martin case Mar. 10-11 and Jul. 20, 2003. For a defense of Martin, see Val MacQueen, FrontPage, Jan. 28, 2003. -- W.O.
[Editor's note -- we received the following in response to Ted's Jan. 27 item. We've left the orthography unchanged so as not to risk interfering with the writer's wordplay and sense of style -- W.O.]
i read with interest the blurb on my litigation with THE HAYWARD GALLERy. some one sent it to you, and you have graciously published it.. it is welcome.
but true facts are that in l989-90 Hayward Gallery showed 350 paintthings,pain-things, paintings and flexi-collages plus by me. at the end of the exhibition, they took the paintings out of frames without my authorization and say they sent by British Airways. Most were lost, others were irretrievable damaged. Lawyers Allen & Ouvery offered me Pounds 65000 as compensation .. I said I will either take Pounds 65M or nothing. They then changed the lawyers to one David GOLD, who started playing games, intimidating me (I dontv take it lightly) and even said that no (white) judge will believe me because I burn my paintings as art, because I have burned dollars and made made sandwiches (in 1965 while at Harvard Law School); because i have been sowing seeds in Hyde Park .. that I hung my paintings upside down at my University of Birmigham Show in l962 ... David knows nothing about art .. he does now realize that my such innovative acts .. an artist does what you did not expect from art .. was forerunner of Beuys, Baselitz, Richard Long, McBrady, Walker and a host of 1970's "avant-garde"... David GOLD wasted time mala fide, egregiously perversely in bad faith..., till the claim re loss and damage toaintings etc became time-barred. hayward and david gold were smug and felt secure.
Regarding the stripper awarded a big pile of cash after being mauled by a tiger in an Ontario safari park (Feb. 2), there's an interesting detail in the case. The car's windows were open at the time of the attack, which they shouldn't have been. Seeking to explain this fact, the couple managed to convince a judge that it happened accidentally after one of the big cats bumped the car. Have you ever heard of a power car window coming down after being "bumped"? Neither have I. -- Patrick Balester, Kansas City, Mo.
On your item about lawyers advising dog owners not to post "Beware of Dog" signs (Feb. 7), I've spent too many years as an adjuster not to comment on this one: Florida has a law which gives substantial immunity to owners who post a prominent sign warning "Bad Dog". If the owner has not posted such a sign, there is strict liability. The case law is lengthy on such issues as language (only English is required) number of signs, height of signs, color of signs, size of lettering, you name it. -- Braley Carroll, Jacksonville, Fla.
Last summer I completed my first year of law at the University of Toronto. I first came across you and this site while writing a critique of A Civil Action and became a regular daily reader. I was awarded the prize for 1L Tort Law and believe that reading your site contributed to this result. When I was addressing the fact patterns I tried to think of the most bizarre and extreme causes of action that might possibly be applicable. Thank you for chronicling the unfortunate real-world examples of that sort of law. -- Noah Gellner, Toronto, Ontario
I am an ice hockey referee and was officiating at a high-school game a while back when a player shot a puck which hit me in a not entirely dignified portion of my anatomy. Both team medics were out on the ice immediately, the player and his coach apologized for hurting me, and after taking a quick break I completed the game. I told them their apologies were completely unnecessary and that I would neither call a penalty nor hold a grudge; I can tell when an injury was unintentional, as this was. Besides, I was completely out of position and it was my own fault that I got hit.
Two days later, I received an e-mail from someone describing himself as a spectator who said that I should sue the player, the player's parents, the coach, the team, the rink, the state and regional hockey league, and the manufacturers of the equipment that I was wearing at the time of the so-called injury. The letter listed complete contact information for a lawyer that would take my case.
Getting struck with a puck is just a part of being a referee. I've been hit with pucks, sticks, and players more times than I care to count, and I've never been injured to the point where I've had to seek medical treatment. As far as I'm concerned, sports officials MUST be willing to take personal responsibility when they step out onto the playing area. Should my good luck run out, it is standard policy in USA Hockey that referees be given supplemental insurance to ensure proper medical coverage.
I was so disgusted with the letter that I contacted the bar association and called its attention to the possibility that the lawyer was involved in improper solicitation of business. I also sent letters to all of the people and organizations named in the letter. I did not ask for anything; I simply wanted to warn them. I received many letters of thanks, and one company sent me a coupon for a free pair of very fine skates in thanks for my efforts! I told them I was reluctant to use the coupon because they did not owe me anything but the president of the company wrote back and said that lawsuits have been costing them huge amounts of money, and that it was his privilege to support the people who wear the stripes.
Please continue your incredibly important work. Something needs to be done, and our lawmakers are not going to take the lead. -- Name withheld by request, New Jersey
I must take issue with your statement (regarding religious vilification laws in Australia, Dec. 3) that "an essential part of the task of proselytizing for one faith is convincing listeners that there is something seriously wrong with or deficient about others."
While there are certainly misguided individuals claiming that their faith is The Only Way, this does not apply to everyone. Even Pope John Paul II has said that "salvation is not denied to non-Christians".
Badly done, sir. Broad, sweeping generalizations are usually not your style. -- Duane Roelands, Paradise, Pa.
Good point; I should have specified that some (as opposed to all) faiths hold such proselytizing to be essential. I've fixed the relevant text, with an explanation -- W.O.
A recent AP story brought readers up to date on civil rights pioneer Rosa Parks, who is 91 and suffers from dementia and is in poor health. At the end of the story comes this incidental note:
"More recently, Parks' lawyers have filed two suits involving the hip-hop duo OutKast and their record company, BMG, over a song titled 'Rosa Parks.' They seek a total of $5 billion."
Well, if she is suffering from dementia, was this suit her idea or was this a case of lawyers deciding to file the action? -- Moin Yahya, Edmonton, Alberta
I am a lawyer working in Australia but am also admitted to practise in England and Wales. I follow your site with interest and was appalled to note (Oct. 7) that referral fees could be paid by or to solicitors in England and Wales.
It was with great relief then, that I learnt that a motion was presented to the Law Society of England & Wales (the regulatory body) which voted overwhelmingly (3 to 1) in favour of returning to the old position of referral fees not being allowed.
Although the motion has to be ratified by the Council it gave me a bit of a fuzzy feeling to know that there are lawyers out there who not only have principles themselves but who will stand up for them. -- Sean Stocks, Perth, Western Australia
While the vote of the membership is not binding, the Law Society has pledged to re-examine the issue by this Spring. -- W.O.
Given your desire to drive frivolity out of our courts, a worthy and necessary goal, I thought you may actually prefer to read the details of the lawsuit described in your Nov. 15 post ("Lawyer sues 'Law & Order' over fictional attorney") and then come to your considered judgment, and make whatever changes on your site you feel justified. Those details can be found here (PDF). -- Ravi Batra, New York, N.Y.
Doubtless you are aware of the impressive reforms in civil procedure which were enacted in Texas not long ago. Those reforms included several new provisions as to class actions, one of which, I believe, is potentially of national impact.
Texas has now mandated the "lodestar" (enhanced hourly fee) principle, as opposed to share-of-recovery contingency fees, for awards of attorney fees in Texas class actions. Nonetheless, as I type this and as you read it, we may be certain that somewhere, in a class action in another state, some attorney is representing hundreds or thousands of Texans, and is requesting in the name of his Texas clients a huge contingency fee. In the national class action setting, of course, most of the"clients" become clients only through an order of court. In accepting such an appointment, however -- in representing citizens of one state by order of the court of another -- does an attorney not become an officer of the courts of both states?
Continue reading "Texas rules for Texas class action members?" »
The Virginia Postrel column you quote in your Nov. 11 item ("Accommodations in the Emergency Room") contains the following quote: "'You're disabled or you're not,' says Stephen Tollafield, an attorney with Disability Rights Advocates in Oakland, Calif."
Actually, no. Many disabilities fall on a continuum. Some people are very dyslexic, some less so. At whatever point you set the cut-off for the level of disability that justifies special accommodations, you are disadvantaging people that don't quite make the cut-off.
Not to mention that, if dyslexic medical students get accommodations for the medical school entrance exam, they will demand them for the finals too, and for their internship and medical licensing exams. Being treated by an emergency room physician who needed all these accommodations seems a little too severe a punishment even for Tollafield. -- Mark Moss
On your "Innocents Behind Bars" (Nov. 16), you might mention that a noticeable number of such cases (though quite apparently not the one you linked) are cases where a new trial is granted based on a technicality, but the original witnesses are dead or can't be found, etc, and so the charges are dropped. This is especially true of death row "innocents" -- several have sued the state for damages, but they have been thrown out. As one judge said (paraphrase) -- "Inability to re-prosecute you now doesn't mean you didn't do it." Or something like that.-- David Allen, Amarillo, Tex.
It may be interesting to consider the possibility of Florida’s Supreme Court striking down Amendment 3 under an "access to the courts" type of argument. There is little doubt that the odds are that somehow, some way, the Bar will find a way to neuter this amendment by attacking it in the courts, in direct contravention of the expressed, democratic and clear public will of the people.
I enjoy Overlawyered.com, you do a great service. -- Philip Monte, Member, State Bar of Florida, Tallahassee, Florida
[For more on the post-Amendment-3 legal maneuvering, see Point Of Law, Nov. 4 -- W.O.]
OK, OK, we get it, Mr. Edwards is a trial lawyer with all the dubious ethics of the profession (dubious ethics surely being no bar to the political profession, no matter what your party membership), and other trial lawyers appear to love him to the tune of millions of bucks. We understand that, so can you lay off it a little now? I'm a foreign reader, because the U.S. is not alone, though it seems to be the worst afflicted, with a legal system run amuck. I am deeply and personally interested in tort reform; we all should be, right or left, red or blue, whatever. (I work in the fairly lefty social services sector, and insurance rates and liability fears are severely constraining what we can do to help our clients-- its an immediate and practical issue, not an ideological one.)
One of the sadnesses of the U.S. dominance of the global media, is that it gives the U.S.'s insane partisanship a global reach, so that issues get tagged and tainted. It is horrible that tort reform has become a partisan issue in the U.S.; both because it is corrupting the Democrats as they rake in litigator dollars, but also because the worth of the cause is being tainted by association with highly partisan and often dubious Republican partisans (i.e. just like Mr. Edwards), and we end up in a Monkey's Paw scenario where the solution may well be worse than the disease. (It's all rather like stem-cell research: for obscure technical legal and theological bases leading to political positioning, rational discussion of the topic is almost impossible now.) From my foreign point of view, a plague upon both their houses, but please, we have to keep the focus on the issue. So fair enough, your comment so far, but please do not become, or appear to become, a Republican front. Surely there must be some litigatory smirch on some Republican vests? -- Rob Bray, Calgary, Alberta, Canada
I know it is tempting to use the bully pulpit provided by the website to campaign for your preferred candidate, but frankly, Overlawyered has been the only legal blog website I've seen that was willing to concentrate on its avowed mission, and not clutter its pages with partisan chatter. We get enough of that from the N.Y. Times and Fox News.
As an attorney with almost 20 years in practice, I have been dismayed by the direction the profession has taken... it is not a turn for the better. Overlawyered performs a valuable service. Please don't continue to undermine the credibility of your website. -- anonymous reader
[In response to this and the previous letter, a few observations:
* Just as some readers think the site pays too much attention to U.S. politics, so other readers' patience is tried when we cover, say, toxic-tort or cerebral palsy litigation in detail. Think of it as like reading a magazine, and scroll or click past the bits that aren't your favorites. As it happens, several other readers have written in to accuse us of wasting pixels by including so many stories from Canada, the U.K. and Australia; the site should maintain a tight U.S. focus, they think. The same advice applies to them.
* There's reason to believe our politics coverage this year has been popular, however, because our commentaries on John Edwards and on the presidential race have gotten higher visitor traffic, and been more linked to, than almost any other posts in the site's five-year-plus history. Some of the new visitors have bookmarked the site and become regular readers, and traffic is up on "ordinary" days as well.
* Like it or not, this is a personal as distinct from an institutional site, and you're going to get my (and, when he ventures it, Ted's) opinions on various matters of public moment I think important, as well as oddments such as links to some of the non-law-related things I write. (Some readers complain that I don't include enough personal stuff.)
* While it would probably be rather dull to "campaign for [my] preferred" candidate at any length, it would be equally dull to pretend never to have any preferences whatever. In the case of this year's presidential race, the point of my Oct. 26 post was precisely to disabuse readers of the idea that I had a "preferred candidate" to promote, since neither major party candidate seemed to me worthy of endorsement. -- W.O.]
From what I've seen of the marriage amendments you cite (Nov. 2), they sound bad... but, to give you the other viewpoint, I'd still take those over the absolute judicial tyranny of Massachusetts. I think most people feel that way, and they didn't stop to think that the third choice would be to get a better amendment (like the "nothing in this Constitution shall be construed to require..." type language, for instance). Hopefully, now that they've got the main issue covered, next time, more moderate amendments can scale it back to something more reasonable.
I think it's kind of like this: a neighbor down the block had their house broken into and severely vandalized (that's how a lot of people feel about it, I think), so something needs to be done NOW. Boarding up all the windows and buying a bulletproof door is a bit extreme (and possibly damaging to the house), but if the current choices are that or nothing (that's all that made it to the ballot), boards it is.
Not the best analogy, but I think it gets the idea across. After Roe v Wade, a whole lot of people have basically said "ENOUGH!" - and the price they're willing to pay to follow through on that is pretty high.
At least, that's how I see it. If I had had that choice on the ballot, I'm not sure how I would have voted - I think it would depend on how imminent I thought the need was. A "nothing in this Constitution..." type amendment would be a no-brainer, of course. -- David Allen, Amarillo, Tex.
I am a physician in Nevada, and am active in the fight for tort reform in our small state. There are three competing initiatives on the Nevada ballot of intense interest:
Question 3, which promotes California-type malpractice liability caps, sponsored by physicians and businesses;
Question 4, sponsored in a hidden fashion by the trial attorneys, which purports to reduce everyone’s auto insurance rates, when in fact it stealthily undoes any past and future tort reform by solidifying itself as a state constitutional amendment to prohibit caps;
Question 5, another constitutional amendment, also sponsored by the trial attorneys, which deceptively purports to limit frivolous lawsuits. Its real purpose is the following provision, taken from the description provided by the Nevada Secretary of State: "The amendment also voids any changes made to Nevada law between January 1, 2004, and December 1, 2006, that decrease the dollar amount of damages persons may recover for losses and harm caused to them as a result of the negligent or wrongful conduct of another person [thus nullifying recent medical malpractice reform]. The amendment does not prohibit the Legislature from: (1) increasing the amount of monetary damages a person may recover caused by the negligent or wrongful conduct of another; or (2) repealing laws which limit damages. Any other changes to such laws are deemed void."
It should be clear that the last-named clause is very dangerous not only to Nevada doctors but also to other defendants both in Nevada and in the rest of the country, especially since trial lawyers can sometimes obtain venue in Nevada for cases that may have arisen elsewhere. A provision permanently banning legislative correction of liability excesses will make Nevada the next “judicial hellhole” on steroids. The problem is that few realize just how dangerous this proposal is. -- Donald C. Mohs, Jr., MD, Las Vegas, Nevada
For more on the Nevada initiatives, see my Wall Street Journal piece from Friday -- W.O.
The late Christopher Reeve did more for medicine than promote spinal cord research; he shed new light on a problem than many suffer from. As CNN.com put it, “In the last week, Reeve had developed a serious systemic infection from a pressure wound, a common complication for people living with paralysis.”
I am well aware that pressure wounds develop in people who lack sufficient mobility, and yet suing medical professionals for not preventing pressure wounds is a growing source of income for trial lawyers. I have suffered through many a lecture from representatives of the legal industry who insist that pressure wounds are due to neglect.
Mr. Reeve’s death sheds light on the fact that fatal pressure wounds can develop in people with insufficient mobility, regardless of the attention and resources dedicated to the patient. One hopes this revelation will inhibit trial lawyers from devastating medical professionals who care for the vast number of immobile patients who develop serious and sometimes fatal pressure wounds. -- Dr. Steve Farmer, Upper Sandusky, Ohio
"Pressure wounds" is the medical term for what lay persons often call bedsores. USA Today, Oct. 24, has more on this issue -- W.O.
Regarding the mother in Scotland who is suing the British Ministry of Defence over her soldier son's death in Iraq (Aug. 25): I was in a helicopter crash in Viet Nam. Equipment failure, not related to the enemy. Left me with a broken back and assorted other things. Silly me, I just assumed that everybody thought that going off to war was a risky thing to do. -- S.W. Bondurant, Grenada, Miss.
Thank you for covering DirecTV's slash-and-burn legal efforts to rid the world of so-called "pirate devices" (Apr. 30). There was a major favorable development in June, when the Eleventh Circuit federal appeals court ruled that DirecTV could not sue consumers for "mere possession" of devices capable of intercepting their signal. However, DTV is still waging its campaign as it has done for the last three years. In a number of states, customers have struck back with RICO suits against the company.
Readers can learn more about this issue by visiting the site directvdefense.org, run by the Electronic Frontier Foundation and the Stanford Center for Internet & Society Cyberlaw Clinic. There also is a forum at wumarkus.com that has been of great help to all involved in this battle, and which includes dockets and material helpful in defending a case; both lawyers and defendants participate.
I am among those targeted and unfortunately it has cost me tons of money to defend myself in federal court. -- name withheld by request, Allentown, Pa.
I was horrified to read your Aug. 27 piece on the Ohio court that allowed a TV crew to film the deliberations of a jury. As someone who has served on seven juries, both civil and criminal, I firmly believe in the principle that what happens in the jury room should stay in the jury room. Deliberations are difficult enough, having to reconcile diverse viewpoints into a verdict, without having the public watch. The specter of people posturing for the camera, or being afraid to speak their minds, is truly frightening. I know of no one, except perhaps a professional actor, who is able to be entirely honest and unselfconscious in the presence of a camera.
It does not matter whether the presence of the camera affected this jury in this case. The potential for the effect is there. We try to remove all outside influences from the jury room, so that the jury can concentrate on determining the facts in the context of the law. This runs entirely counter to that. Will jurors now be allowed a "lifeline" call to a friend if they get stuck?
The defense counsel in this case would seem in my opinion to have been less than competent. He states that "I did not think that [the judge] would go along with this, so I did not formulate an opinion one way or another" and then seemingly goes along because everybody else is. Even if he agrees with the decision, it's his job to have an opinion and to decide how this affects his client.
In my jurisdiction (Los Angeles County), the judges are fond of telling jurors that their participation is one of the few ways that they can have a direct effect in our democracy. Having a camera in the jury room is no different than having a camera in the voting booth.
If you want to see how a jury works, rent "12 Angry Men." If that is too dated, then remake it. "Reality TV" does not belong in the jury room. -- Art Kaufmann, Los Angeles, Calif.
This summer's "doctors won't treat lawyers" episode was a case study in media manipulation. It started when one physician, South Carolina surgeon Chris Hawk, got frustrated and began looking for a way to lash back when lawmakers in his state adjourned without doing anything about the medical liability situation. Dr. Hawk introduced a resolution to the AMA House of Delegates proposing that it's ethically OK for doctors to refuse to treat trial lawyers until something is done about the medical liability crisis.
To repeat... this was ONE doctor exercising his right to introduce a resolution at the AMA annual meeting in Chicago. Hundreds of resolutions are presented to the AMA House of Delegates, generally with support from an identifiable group of physicians. Dr. Hawk had no body of backers for his idea, nor was his own medical society in South Carolina on board with it. Instead of taking the hint that nothing good could come of his public temper tantrum, he decided to go it alone.
In the absence of any evidence that Dr. Hawk's peers were lending any significant support to his position, this should have been a non-news-story by any standard. Instead, it resulted in weeks of media coverage. And that coverage was stirred up quite deliberately through news media communications and even press conferences from the "usual suspects" who oppose doctors on the tort reform issue -- the trial lawyers themselves, so-called consumer groups that act as their fronts, and lawmakers allied with them. It was purely artificial outrage, because these groups knew there was no chance Dr. Hawk's resolution was going anywhere. And yet the resulting media coverage sometimes made it appear that there was a big trend under way and that the medical profession was on the point of endorsing a "don't-treat-trial-lawyers" campaign. Here in Pennsylvania, a Democratic lawmaker even introduced legislation to make it unlawful for a physician to refuse to treat a patient based on the patients' profession.
What happened at the ABA House of Delegates in Chicago? As it turned out, fellow physicians were so opposed to Dr. Hawk's measure that they never even voted on it -- he withdrew it by popular acclaim.
But the damage was done. Advocates of medical liability reform spent the summer doing damage control, lawmakers cited the episode and used it to defeat caps on noneconomic damages, and the resulting fallout has harmed medicine's cause more than anything else I've seen in recent years. Thanks a bunch, Dr. Hawk. -- Donna Baver Rovito, Allentown, Pa.
See also adjacent letter, and letters run Sept. 31 and Oct. 22, 2001. For a recent anecdote from Connecticut, see this Law.com account. -- ed.
Doctors want to refuse service to certain lawyers? I don't condone refusing necessary medical treatment to anyone, but this could be the start of what may be the only way to get rid of so many destructive, counter-productive lawsuits: refuse service to those who are most likely to bring such lawsuits. Perhaps if a trial lawyer who has a record of frivolous lawsuits is refused service by plumbers, electricians, and babysitters, refused access to restaurants, dry cleaners, and auto shops, and denied entry to public pools, playgrounds, and theaters, the tort reform so necessary in this country could move forward without the cries of outrage from the trial lawyers association.
Then again, they'd probably just sue. -- Ray Burtoff, Mount Laurel, N.J.
As someone with experience in the examination of cruise ship passengers (U.S. Customs Inspector since 1972), I take exception to Ted Frank's characterization (Jun. 22) of the incident in which a woman was taken into custody on the strength of a mistaken warrant arising from a food infraction at Yellowstone Park. Obviously, someone erred in entering this lady's name in any database. However, when it was determined that some sort of warrant existed, the officers at the pier HAD NO CHOICE. They have no discretion to determine if the warrant is important or trivial; that is for others to determine.
No, we are not laying aside our efforts to prevent terrorists from entering the country. Anyone who is found to have any kind of warrant will be taken into custody, and turned over to those who have the capability to determine the proper disposition of the case. Clearly, in this instance, the magistrate made the reasonable decision. That is his job. Finally, you seemed to imply that there was somehow something sinister about the timing -- 6:30 AM. In Seattle, cruise ships arrive at 6 AM. The carrier desires to get the passengers off a quickly as possible to enable them to ready the ship for the next group with, usually, a 5 PM sailing. So, there is nothing unusual about the hour.
And there probably is a good reason for the Yellowstone Park regulation that instigated the whole thing. Unsecured food quickly attracts bears. This lady would have been very unhappy if a bear had invaded her campsite to get her marshmallows. -- Cameron King, Seattle, Wash.
Thanks for writing. However, I must take exception to your exceptions. While perhaps it is the case that the front-line Customs officials had no discretion but to handcuff and shackle a passenger regardless of the seriousness of the warrant, this still means that someone at a higher level has decided that this is a good use of limited Customs resources. (Wouldn't it be better to do a comprehensive (or, at least, a more comprehensive) search for serious warrants than what I understand to be a random search for all warrants?) Even viewing it as a taxpayer, rather than imagining myself in the flip-flops of the jailed vacationer and her nightmare, it seems to be unprofitable to devote so many person-hours to the supposed non-payment of a $50 fine. The prosecutor, who did have discretion once the case was delivered to him, wanted to have still further proceedings on the issue.
I am not proposing that parkgoers should be free to scatter sugary treats willy-nilly; I have no doubt that one should not leave marshmallows unstored in the wilderness and personally do my best to avoid bear-related incidents. But I describe the offense as trivial because the government has decided that it merits no more than a $50 fine. -- Ted Frank
A word from a med-mal defense lawyer regarding "A 1 in 1.09 quintillion Chance" (Jul. 28): plaintiff's lawyers never allow an autopsy if they can help it. An autopsy more often than not sinks their case, as your story proves. -- John Schedler, Seattle, Wash.
While I am in total agreement with you about the madness of the Philadelphia medical malpractice and medical liability insurance climate (May 20), you should be very careful about attributing developments in the Philadelphia medical marketplace entirely, or even mainly, to the malpractice climate. Many other trends are at work in this marketplace:
1. The region is and has been for some time over-doctored and over-hospitaled. For example, there are five academic medical centers in Philadelphia. Until a few years ago there were six; two merged. The city has been losing population for fifty years and the region is not growing. Many of the OB department closings you cite represent larger retrenchments and consolidations. For example, the owner of MCP, for-profit Tenet Health Care Systems, is currently trying to close that money-losing facility. Toward that end it has been cutting a number of acute care services. The OB services previously provided at MCP have been shifted to Roxborough and Hahnemann, two other Tenet hospitals. Episcopal, Methodist and Elkins Park have been acquired by large academic health systems, which have reduced many acute care services at those facilities while providing those services at other hospitals in their systems. One reason that OB programs are largely concentrated in teaching hospitals is that the teaching hospitals have been acquiring the community hospitals and consolidating their specialty services like OB at the parent institution. Certainly the loss of these community hospital OB departments represents an inconvenience to some local residents and providers. Whether it represents a decline in the availability and quality of OB services is another question, and your data do not answer it.
2. In addition to oversupply, the medical marketplace in the Philadelphia region faces a highly concentrated medical insurance market. Two providers, Aetna and Blue Cross, dominate the market and have used their market power to drive down reimbursement rates. The statement that liability costs approach 2/3 of reimbursement levels represents both high liability costs and low reimbursement levels resulting from oversupply and a concentrated insurance market. Philadelphia is a buyer's market for medical services.
3. The large number of physicians who are employees of health care systems, rather than independent practitioners, reflects another economic development. In the '80s and into the '90s, in addition to acquiring other hospitals, the academic medical centers acquired physician practices at an amazing rate. There was a theory that this was necessary to secure the stream of patients from these practices to the parent institution. No doubt it seemed like a good idea at the time, though it is hard to see why. All in all, the trend caused huge losses to the academic medical centers, who overpaid for practices of dubious value. In any event, it increased the percentage of employed physicians generally, not just in OB.
There is much anecdotal evidence that medical liability costs reduce the availability of OB services in underserved rural areas, where practitioners cannot generate the volume necessary to cover insurance expenses. It would be interesting to know whether this phenomenon could occur in a major metropolitan area or if, as I suspect, it is accelerating the trend toward consolidation of these services in high-volume medical centers. The source you quote does not address this question.
Keep up the good work. -- James Ingram, Philadelphia, PA
I just read Stuart Levine's post (referenced on Overlawyered Oct. 30, 2003) about homeowners' insurance as a source of protection for website proprietors against defamation suits. I maintain a small website, iatrogenic.org. I asked my insurer, Amica, if it covered web sites under its umbrella policy. It responded by canceling my umbrella policy. I was told that some of what Amica considered controversial material on the site might make me vulnerable to lawsuit. I've since picked up coverage with a company that offers umbrella-only policies. I will not be asking them about the website. I predict that insurers will eventually exclude all website coverage. -- Nicolas Martin, Indianapolis, Ind.
Re: Freedom Holdings v. Spitzer, the antitrust challenge to the tobacco settlement (May 11): another case to watch is described here (scroll down). It's a class action on behalf of California residents who bought tobacco in that state from April 2000 to the present, and it charges that tobacco companies and other unnamed defendants have engaged in unlawful price-fixing and market-sharing by means of the 1998 master tobacco settlement. I really hope the plaintiff's attorneys know what they're doing in this case. This could be a show stopper. Keep it up! -- Mike Carney, Eagle River, Alaska
On those anonymous certifying doctors in Illinois (see "Anonymous Accusers (Of the Expert Kind), Jul. 23), it seems to me we have to place these certifications in context. Contextual element number one: Medical malpractice defendants already enjoy a protection afforded to few other litigants, in states where some licensed professional must sign off on the claim before it may even be filed. Contextual element number two: The med-mal plaintiff (I assume) cannot rely on anonymous sources for any evidentiary purpose, but rather must produce identified experts to survive summary judgment and proceed to trial. Overall, such certification regimes can be regarded as the state's delegation of a quasi-judicial screening function to medical professionals it has chosen to license, without any intent that the screening function displace the litigation process in which potentially legitimate claims are evaluated on the merits. (There would probably be Seventh Amendment issues, from both the plaintiffs' and defendants' perspectives, if such a displacement were intended.) If the doctors are being enlisted to offer this service on the state judicial system's behalf, it seems reasonable to protect them from attack, whether that attack be from aggrieved defendants or from disappointed plaintiffs who do not obtain the certification they requested. Anonymity may not be a necessary or sufficient device for affording such protection, but it's one way to go about it. Absolute or qualified legislative immunity from suit and/or disciplinary action could be another. -- Peter Nordberg, Daubert on the Web
Well, there's certainly much to be said for putting the case-screening function in the hands of impartial medics employed in a quasi-judicial capacity. For that to happen, one would want to make sure the screening doctors were 1) selected by and 2) compensated by the court itself rather than by the contending parties. Were that the case, we might consider extending to those doctors the near-freedom from suit that we accord to judges, special masters, etc. However, unless I am much mistaken, the current rules in Illinois are quite different: they instead allow a lawyer to shop around for a doctor who will certify whatever the lawyer wishes to have certified, and the compliant M.D. who agrees to serve as a rubber stamp can pocket a fee from the lawyer while fearing neither professional disgrace nor specifically legal consequences.
Even were we to move to a system of screening by truly neutral court-selected doctors, I very much doubt that we would want to accord those doctors anonymity: the values of courtroom transparency and accountability would be too much at risk. As for the danger of retaliation, the law's usual reaction -- in the case, for example, of companies which might fear revealing the identity of personnel decisionmakers in employment suits because of the risk that demonstrators would show up at those managers' homes at midnight -- would be to say that there are already laws on the books addressing the dangers of improper harassment, and if those laws are too weak they should be strengthened directly rather than keeping litigants ignorant of the identities of their key adversaries. -- W.O.
On your Jul. 21 item on disabled accommodation on the medical admissions exam, let me start with Disclaimer One: Larry Paradis and the others at his law firm have done some good work for the disabled. Disclaimer Two: I am an old physician-attorney (practicing both) who is frequently appalled by the poor quality of the younger doctors he meets. Comment: The only distractions present at an MCAT exam are the other aspirants taking the test. If they can't function in that setting, what will they do with a child turning blue from asthma, a mother screaming to do something, one nurse asking for orders for treatment for the child, and another nurse asking simultaneously for instructions about the cardiac case in the next exam room? Such is a typical busy clinic or emergency department atmosphere. Multi-tasking with distractions present is ROUTINE. With regret that their aspirations do not match their capabilities, people in that situation have no business in medical school. They are in the same position as I was when my college coach told me, after he had finished laughing, that I would never be a professional-level athlete. -- Matt Howard, Law Offices of M. L. Howard, M.D., Talmage, Calif.
The New Jersey case you discussed Apr. 21 has gotten a lot of attention in the dive community, as in this discussion thread (I'm Divepartner1).
But not all recent cases point in the same direction. A different court decision, which has also gotten wide attention in the dive community, upheld liability waivers signed by a man who died trying to dive the site of the Andrea Doria shipwreck. The case, decided under New York Law, is Murley et al. v. Deep Explorers, et al,, 2003 U.S.Dist LEXIS 14749 (E.D. N.Y. 2003)(PDF).
After reading the story you linked, I should add that no one who knows anything about diving would likely see the basis of a negligence action under the facts detailed in the story. Tragic, but the circumstances suggest diver error.
New Jersey is already driving what may be an unhealthy degree of "preventive medicine" in the scuba field. N.J. dive boats require all divers to bring a secondary air source -- i.e., either double tanks or carry a "pony bottle" of 20 cubic feet or more, regardless of the depth of the dive. Thus, a diver unfamiliar with the confusion of this kind of rig has to deal with added complexity, added weight, less mobility, more failure points, more drag or snag risks, ect., than that diver may have the experience to deal with. Greater complexity increases the risk of confusion and panic.
A diver with a modern regulator with a secondary back-up reg., a tank big enough for his/her needs, and most importantly, a skilled buddy should have all that is needed in a dive of 120 fsw or shallower. Delaware boats (from which I often dive) leave equipment to the discretion of the diver, in the same waters. -- Paul A. Meyer, Washington, D.C.
Regarding your Apr. 21 item on scuba litigation: Scuba Diving magazine regularly carries articles such as this one, which relates the story of a successful lawsuit by the survivors of a "tag-along" diver on an instructional dive who failed to secure a "buddy" as the instructors insisted and met with a fatal accident; the judge permitted the plaintiff's lawyer to introduce questionable assertions about the standard of care expected of instructors under those circumstances.
If you are unfamiliar with diving, I would claim that it is a very safe activity, as long as you follow a simple set of rules. Unfortunately, deviation from the rules can have very severe consequences, a fact that certain people have trouble understanding. Also unfortunately, these are the type of people that tend to blame everyone around them.
In this and in other court cases, instructors have been held to owe a duty of care to anyone around them in the water, even if they aren't diving with that person, and no matter how much that person's negligence has contributed to his or her problem. I find this ludicrous: instructors are not public safety personnel like police, and shouldn't be required to provide (potentially dangerous) help to anyone around them, even when 1) the instructors are not at the time acting as instructors and 2) the instructors aren't diving with the person in question.
I'm a former SCUBA instructor with hundreds of hours of logged bottom time. Incidents like this -- specifically the idea that I should be required to render potentially dangerous assistance to all and sundry (for free, no less) -- and the skyrocketing price of insurance led me to give up my instructor's license. I know that I'm not the only one to have done so; a number of diving buddies used to teach part time on weekends because they loved the sport. This has directly contributed to a fall in the number of available instructors and increased prices for instruction. Basically, it had gotten to the point where I would have had to spend three or four weekends teaching just to break even with the insurance bill, not to mention all the other costs of instruction. The cheapest insurance available runs about $500 / year now; it used to be less than $200. The lawyers are coming; the only thing that will slow them is the industry largely lacks the necessary deep pockets for them to steal from. -- Earl Hathaway
I noticed that you carried the item (May 20) about the lawsuit against the jail architect et al because the serial killer who hanged himself couldn't be reasonably monitored by jailers. I see your point, but I noticed the story for what might be approaching the opposite angle: According to the St. Louis Post-Dispatch (the same story you linked to), Travis hanged himself while he had a pillowcase over his head, toilet paper in his nostrils, a washcloth in his mouth, and, and, and, his hands tied behind his back. I'm ready to ask U. of Missouri to set up a Maury Travis memorial gymnastics scholarship. But I view the lawsuit as sort of a kitchen sink set of claims by a family with some pretty good evidence that he might have been abughraibed. -- Chuck Shepherd, News of the Weird
Yes, the episode does seem more than a little fishy. And yet we also noticed (relying, once again, on the same Post-Dispatch piece) that the deceased "had interest and skills in bondage", possibly accounting for his ability to restrain himself in impossible-sounding ways, and that the mother's lawyer is curiously unaggressive (see last few lines of story) about advancing the notion that Travis was murdered. No indication appears whether the authenticity of the suicide note has been questioned. At any rate, as reader Shepherd (whose weekly column is one of the longstanding delights of American journalism) correctly notes, the aspect of the suit that most got our antennae to waving was its avidity in assigning blame to so many different defendants including the prison's architect and builder. -- ed.
First, a little background about me. I am a trial lawyer in Chicago. I am a firm believer in our legal system and think it is the best in the world. Having said that, I recognize that the system, well, more precisely, some of the lawyers who work within it, need to re-evaluate their "contributions". They are simply too many stupid lawsuits being filed, and as a result, all trial lawyers are being tarred with the same brush.
It is important to point out some of the more egregious examples and your site does a good job of doing just that. (I still can't believe some jury awarded nearly 3 million to a girl who alleged her eating disorder was due to her coach's yelling). I don't always agree with what I see, but I do read it (and sometimes cite to your blog in my blog, closing argument@blogspot.com).
Keep up the good work.
Mark P. Loftus [site]
We're honored by these kind comments and hope we can live up to them. Not all of Mr. Loftus's colleagues in the legal profession share his generous view of our efforts, as the adjacent letter from Mr. Stevens makes clear -- W.O.
In your May 3 item about the developmentally disabled child who died after sticking his head through an open school bus window, you wrote: "[the mother's] lawyer, Robert York, said in particular that the fatality could have been averted 'if the bus's windows had been blocked from opening more than a few inches'. The article makes no mention of what such a recommendation might mean for the safety of school bus passengers in other situations, such as emergency evacuations." (Emphasis added).
The highlighted portion of your statement is provocative indeed. We would be wise not to impose limits on bus-window openings for the purpose of protecting the (lamentably disabled) few, at the possible expense of the safety of the millions of children who ride school buses every day.
The problem with this reasoning, as everyone who has seen a school bus knows, is that school bus windows are not designed for evacuations. I offer a visual aid.
As you will note, school bus windows include two rectangular glass panes, an upper and a lower, of equal size. The lower is stationary, and cannot be opened. A window is opened by lowering the upper glass pane so that it is positioned directly inside the lower glass pane. The largest opening that can be achieved is approximately the size of one of the rectangular glass panes. School children are not instructed to try to exit the bus through these windows in the event of an emergency, presumably in part because the windows openings are smaller than school-aged children.
Instead, school buses are provided with an emergency exit door at the rear, and multiple emergency windows (see the picture linked above). Emergency windows are designed such that the entire window unit, including BOTH glass panes and the window frame are removed, providing a realistic evacuation exit. The efficacy of emergency windows is not in the least dependent on how far the individual upper glass pane can be opened.
In light of this, it is no wonder that "the article makes no mention of what such a recommendation might mean for the safety of school bus passengers in other situations, such as emergency evacuations." Your somber suggestion that limiting the amoung bus windows can be opened would hinder school-bus evacuations, while eminently reasonable on the surface, is in fact totally misleading. No matter whether this is a result of intellectual dishonesty or simple laziness on your part, in my view it seriously compromises your credibility.
Whether or not the underlying lawsuit is meritorious, your disingenuous commentary has betrayed you as a cynic who is willing to distort the truth to appeal to people in the name of common sense to join your tort-law reform crusade. I do not believe such tactics are honorable or, ultimately, persuasive.
-- C. Donald Stevens, Dickstein Shapiro Morin & Oshinsky, Washington, D.C.
I'm a long time reader, but I think this is the first time I've emailed you. I really appreciate what you do. I wanted to comment on your May 18 statement: "in March Jamie Olis, a mid-level executive at natural gas firm Dynegy, was found guilty of accounting fraud in a scheme to please Wall Street by hyping earnings and sentenced to 24 years in prison. The guy would have been a lot better off to have gunned down someone on the street instead, or even tried to grow psychedelic mushrooms".
While I do feel that such a sentence at least appears silly, and I don't know how much money was involved, there is one thing to think about: how many lives' worth of work was he trying to steal? I'm not saying that means he should get more jail time than murder (I think it should be a minimum life sentence for Murder One), but theft on the magnitude of millions of dollars is on the same scale, in many ways, as murder. Enron, for instance -- if the average person makes 2 million (constant as of 2000) dollars in their lifetime, and I steal 200 million dollars, I just stole 100 people's life's work. When considered that way, I would put it on the same scale as murder. -- David Allen, Texas
According to news accounts, the judge in the case settled on an estimate of harm to investors of $105 million from the accounting misrepresentations that Olis helped devise. Perhaps relevant, the scheme did not siphon money into Olis's own pocket, but was aimed at benefiting his employer. For more, see Susan Warren, Wall Street Journal, May 20, reprinted at WSJ Career Journal site; Tom Kirkendall, May 20 -- W.O.
I came across your item (Dec. 26, 2000) on the case of Gant v. City of Chicago. I was the trial lawyer in the case. You are missing some essential facts. While Doug Gant is gasping for breath, literally across the street from a firehouse, the 911 call rang for over 26 rings, about 3 minutes, before it was picked up by a caller. This was because the supervisor decided that he and 3 other call takers should go to breakfast at the same time, leaving just one calltaker for the entire south side of chicago to take calls. As to the paramedics, it did take them 8 1/2 minutes to respond, which would not be that bad if they were actually trying to respond the entire time. A firetruck with 8 firefighters from the same firehouse followed them, arriving in less than two minutes, some 30 seconds after the paramedics. The paramedics were caught lying on the stand in regard to their report that morning claiming they were delayed by heavy traffic and construction. The person who confirmed they were lying was their very own fire chief at the station, who arrived in the fire truck and insisted there was neither construction nor any traffic whatsoever on an early Sunday morning. When confronted on the stand, the paramedic broke down, and said "the 911 tape doesn't lie; can I go home now?" After about 4 minutes of no oxygen, the brain is severly injured; after another couple, most die. The paramedics admitted that they were fully aware of this, and gave no explanation for what they were doing in the 8 1/2 minutes from when they left the firehouse, to their arrival across the street. Ultimately the trial judge, a former City attorney politically allied with Mayor Daley, agreed with the jury that the City was responsible, but ordered a new trial on the amount of damages. The case settled a month later for $2.7 million dollars. Prior to the verdict, the City's top settlement offer was $50,000.
Your site would be more persuasive if it was less one-sided. You personally might be less biased if it was you making that 911 call for someone in your family. Nobody likes lawsuits, but many things you take for granted, like shatter-proof glass in automobiles, only came about because of lawsuits. The Gant family would give back the money in a heartbeat to get their son back. I have heard from paramedics in the City that this case caused rules to be put into place creating greater accountability of what 911 calltakers and paramedics are doing while on the job. --- Paul McMahon, Chicago, Ill.
I heartily agree with your concern that trial lawyers are suffocating a large part of American life. I worked for 35 years in the Social Security disability program. In the 60s, the program was a simple, effective one. We were true civil servants doing a good job. Without going into the complicated history here, the program degenerated into a bureaucracy, and we became bureaucrats. In stepped the lawyers. They litigated for procedures that add nothing to the quality of decisions. They succeeded in inflicting a mountain of paperwork on state agencies and administrative law judges that has slowed processing time dramatically. I do not claim that lawyers created the problem. The program began its downhill slide long before they came on the scene in droves, but they magnified the problem greatly when they arrived. They have been instrumental in pressing the judges to make hundreds of thousands of unjustifiable grants of disability, especially since 1993. The end result is: Not only is processing time at a snail's pace, but the taxpayer is paying roughly $15 billion a year in unwarranted benefits to over a million people on the rolls who should not be there. And that is just from my little corner of the world. -- Bob Burgess, Cedar Creek, Tex.
Here in Missouri we recently had a widely publicized $20 million verdict against flavoring manufacturers to the first of thirty injured workers at a popcorn plant who breathed in butter flavor vapor, causing a nasty and seemingly permanent lung illness (see AP/Albuquerque Tribune, Mar. 16). Another settlement has followed in what will presumably be a continuing series (AP/CNN, May 1). I know very little about these cases, just what the press has reported, but one interesting fact is that the employer was not a defendant, though it had been notified of possible risk and had even provided respirators to the workers (but not enforced their use). Of course, the employer was not subjected to suit because the employees were covered by workers comp laws. Lawyers have developed a whole specialty in workplace injury cases of targeting outside defendants other than the employer in order to find a way around the workers' comp exclusive remedy. One wonders whether juries know that. -- George L. Lenard, Chesterfield, Mo. (George's Employment Blawg)
Regarding "Auto-Seller Sued For Elderly Test-Driver's Accident" (Apr. 11): Don't you think the auto-seller could raise the defense that it was not negligent in defending the claim for damages? Do you think the plaintiff(s) would be filing suit if they were able to negotiate a reasonable settlement? Do you think a jury is capable of deciding a common-law negligence case? I know, I know, there's a litigation crisis. They need laws to stop people from being able to file suit. God forbid a jury of someone's peers hears their case, they might actually determine that a defendant is responsible for his/her or its wrongdoing.
Really, I am just writing to thank you for all of the hard work you're doing for our profession. Keep up the good work. I hear Ambien helps. -- Matthew D. Harbin, Law Offices of James Scott Farrin, P.C., Durham, N.C.
Is it just me, or is there supreme irony in receiving an unsolicited fax notice of a proposed class action settlement that begins "ALL PERSONS OR ENTITIES WHO WERE SENT AN ALLEGED UNSOLICITED FACSIMILE ADVERTISEMENT…" This involves a claim brought by Cohen & Malad, LLP in Indianapolis against PrimeTV, DIRECTTV, et al, obviously for sending faxes promoting their business offerings in violation of the Telephone Consumer Protection Act. Now, if we can just amend the Act to include unsolicited faxes from trial lawyers who comb through every statute to find opportunities for transferring wealth from legitimate businesses to themselves…
It looks as if the members of the settlement class would receive a certificate for a satellite system plus six months of service (as settlement awards go, that’s actually pretty good for the “victim” of an unsolicited fax, especially compared to the typical award equivalent to $3.95). The lawyers would get up to $200,000 for shuffling some papers around. The punishment seems a bit disproportionate to the crime.
I could fax a copy of the notice to you, but -- unlike the lawyers -- I feel I must receive your solicitation first. -- Rick Provost, Richmond, Va.
Separately, we heard that the New York Insurance Association has asked state attorney general Eliot Spitzer to investigate this incident ("'Just the Fax' - N.Y. Insurance Assoc. Asks State's AGO to Investigate Law Firm", ClaimsGuides.com, Apr. 5). For more on junk-fax litigation, see Jul. 19, 2003, and links from there; Dec. 3; Mar. 19. -- W.O.
According to press reports, a judge in February approved a $4.75 million settlement in a suit filed against Verizon New England and its employee Roger O'Neil over an accident that severely injured 14-year-old Amy Woods in 1996. O'Neil, driving the Verizon truck, didn't hit Woods; instead, he stopped for her and waved for her to cross the street, but she was struck by a second vehicle that didn't stop. Her parents sued Verizon on the grounds that this constituted negligence ("Accident lawsuit settled between girl's family, Verizon", AP/WGGB (Springfield, Mass.), Feb. 23; Theo Emery, "Jury to decide whether driver liable for accident", Concord Monitor, Jun. 24, 2003, reprinted at Pelham (N.H.) message board).
If the facts are as presented, this seems unbelievable to me. It seems to me this should have been thrown out on public policy grounds. The law should be encouraging drivers to yield to pedestrians, not punishing them for it. -- Jim Ancona, Boylston, Mass.
Last summer Dallas city manager Ted Benavides fired police chief Terrell Bolton after four years on the job. Among the reasons, according to the Dallas Morning News: "deteriorating relations with the FBI, the fake-drugs scandal, the demotion of several commanders and an unwillingness to follow Mr. Benavides' directives." Dallas also had maintained for six years straight the worst crime rate for large cities in the United States ("Bolton Meets With Attorneys, FBI To Quell Dallas Crime", NBC5i, Aug. 7, 2003). "I took my firing like a man," Bolton said at the time. If that's true, the manly way to handle being fired is to break down in tears at a subsequent press conference (Dallas Observer, Sept. 25) and then sue the city for mental anguish the equivalent of "in excess of $5 million" (Terri Langford and Dave Levinthal, "Bolton says he will sue", Dallas Morning News, Feb. 14) (reg). -- Ben Schuler, Dallas
Dude, you are wacked. The chief reason many third world countries are run by bullies and are grossly polluted is because they don't have a tort system like ours that enforces accountability and lets one's peers evaluate the merits of a claim.
Your broad-brush approach to disparaging the entire system on account of a few notable examples is reckless. -- Ernie Algorri, daalaw.com
Regarding the Tall Club of Silicon Valley (Mar. 29) and its failed lawsuit demanding extra space for airline passengers of more than 6 foot, 2 inches (men) or 5 foot, 10 inches (women): I wonder why the club thinks that tall men need to be four inches taller than tall women before they deserve special treatment in seating. Maybe they are assuming four-inch high heels. -- John Steele Gordon, North Salem, N.Y.
Regarding Yale law professor George Priest's comments on the ruthlessness of businesses as antitrust plaintiffs (Mar. 17): I work in antitrust policy, and I can attest to the fact businesses are the major barrier to significant reform. One quick example: For the past few years, the Federal Trade Commission has enforced a policy (made up by them) prohibiting physicians from exchanging information with one another about contract offers from managed care payers unless certain conditions are met. In other words, physicians may not join with each other to respond to an HMO's contract offer without the FTC's permission. This policy benefits the HMOs, but it hurts physicians and their patients. The HMOs basically run to the FTC anytime a group of physicians rejects one of their contract offers. The FTC labels this behavior "cartel-like" and punishes the doctors accordingly.
The kicker is, large businesses tacitly support this policy because it keeps the cost of physician services artificially low, which in turn (they think) keeps their health insurance costs lower. -- Skip Oliva, Citizens for Voluntary Trade, Washington, D.C.
I followed with interest the stories (Mar. 9, Mar. 11) about the now-defunct database tracking patients who've filed malpractice suits. The idea is that doctors could buy access to the database and choose to decline patients with a litigious history. Although the plaintiffs' bar was naturally up in arms about this, and many others were critical as well, I think it's a great idea. My late father was once sued by a patient who claimed she would have forgone radiation treatment for breast cancer if she knew how unpleasant the treatment would be. Of course the case went nowhere, but it was very painful for my father who cared only about his patients. I don't think he would have ever turned away a cancer patient, though, even a nutty one who liked to sue doctors. -- Doug Levene, Wilton, Conn.
I'm involved with a community gardening group here in Seattle. We grow several thousand pounds of vegetables for local soup kitchens every year, but currently our water is turned off due to system leaks. We're in desperate need of a plumber.
The Boeing company sponsors a volunteer outing it calls Boeing Community Service Day, a Saturday event (Apr. 17 this year) when its employees pitch in for a half day to help non-profit groups finish "those wish list jobs that never seem to get done". I'm sure some of Boeing's talented engineers and machinists could help with our plumbing problem, were it not for one thing: fear of trial lawyers. The email memo jointly sent out by Boeing and United Way reads: "Due to liability reasons, Boeing volunteers cannot help with plumbing, electrical, and other major structural projects". So it seems we're out of luck. -- Brian Ballard, Seattle, Wash.
It's the end of the legislative session in Wisconsin, and bills are being sent fast and furious to Gov. Jim Doyle for his signature. There are two that caught my interest, as the combination of positions that Gov. Doyle takes on them would appear to make sense only if you're a plaintiff's lawyer.
Firstly, he approved a bill that would ban juries from counting the failure to wear a helmet as contributory negligence (thus reducing damages) in the event of a motorcycle, ATV, or snowmobile accident. (See Tom Sheehan, "Doyle Signs Helmet Bill Into Law", Wisconsin State Journal, Mar. 16). The relevant quote: "'What we're saying in Wisconsin is, if you do something that is in compliance with the law, under this bill it's not going to be held against you. I think juries can decide what the damages are they want to award,' Doyle said after signing Senate Bill 223."
He then turned around and vetoed a law that would have protected resturants and food producers from obesity lawsuits. (See "Gov To Veto Obese-lawsuit Ban ", Capital Times, recent undated). Relevant quote: "'I think the courts can adequately sort these kind of lawsuits out,' he said Monday."
It doesn't take a whack in the head (with helmet or without) to realize who some of his biggest campaign contributors have been. -- Dan Wendlick, Madison, Wis.
Have you seen the settlement in Lamb v. Wells Fargo, as described at this site? I learned about it in an insert with my credit card bill.
I get: one month -- ONE -- of free internet bill pay. That's not even worth signing up for. The supposed cost of this is $3.5M. I'd like to know how that was calculated. My guess would be that hardly anyone will sign up for just a month and the cost will be very low. Of course, a certain number of people will stay on with the service after the first month, so the net cost to Wells will be even lower.
"Charities" get: $3.25M. There are some worthy causes on this list. There are also some litigious advocacy groups who would more aptly be characterized as political operations than charities. Regardless, there is no reason at all why paying off "charities" should be considered a means of compensating class members who suffered damages as a result of Wells' actions.
And the attorneys get: "up to" $2.85M. Not bad for a firm with only three attorneys. I wonder what this works out to per hour. It happens that this is almost exactly 30% of the total.
So Wells pays off the "charities," perhaps getting a nice tax deduction, and offers ONE month of free internet bill pay. And the lawyers get almost $3M.
Does anyone ever fight these things? Is it worthwhile? -- Alan Frame, San Francisco
Yes, occasionally someone does fight them. In this case the deadline for objections and opt-outs is Jun. 30. A couple of further comments: first, the rationale of the settlement is to punish (there is no other word) Wells Fargo for sharing certain information about its customers with outside marketers over a 6 year period, to the supposed detriment of their privacy. Second, existing users of the online bill-pay service will get a free month, which probably is a genuine benefit to them, at least.
U-Haul's refusal to do business with customers who want to use Ford Explorers to tow its vehicles (Jan. 8) illustrates one of the destructive consequences of "shotgun" litigation, in which plaintiffs' attorneys name as many defendants as possible in their suits. In this case the obvious defendants in case of a rollover accident would be Ford, the tire manufacturers or both. But the U-Haul company has a deep pocket too, and lawyers could develop some "creative" or "novel" legal theory (to use a charitable description) that dragged it in by seizing on some extremely remote causal link. (Maybe the argument would be that the effects of a rollover would be more extreme if a vehicle were towing a trailer, and U-Haul had a responsibility to warn Explorer drivers of that.) The high cost of litigation then serves to persuade such peripheral defendants to chip in towards a settlement, to the plaintiffs' and their attorneys' profit. So common is this approach, and so successful, that for a plaintiffs' attorney to fail to exploit it might be the basis for a juicy legal malpractice case. -- George L. Lenard, Chesterfield, Mo. (George's Employment Blawg)
I take exception to your comment (Dec. 19): "Yes, there turns out to be curling outside Canada." This is after all an Olympic sport, though since no American team has ever proven to be competitive, you have fallen prey to the nationalistic bias most networks display (if none of ours are there, why mention it?). The sport is actually European in origin. Your comment seemed disdainful to Canada in general, and could be humorous, if it doesn't hide a lack of "non-US" culture so sadly associated with the American public in general. It would be disheartening to see what is touted as its think-tanks display the same flaw. -- Christian Houde, Montreal, Quebec, Canada
As if to upbraid us further for our curling-related ignorance, the Jan. 2 New York Times carried a story entitled "Blame Canada: Curling Sweeps U.S."
The following (Dec. 15) is inaccurate:
"a passenger was injured while riding in an Oldsmobile that hit another automobile head on at 50 miles per hour and a combined speed of almost 100 mph"
A head-on with both vehicles (of the same mass) going 50 mph is the same as a vehicle hitting a wall going 50. It will accelerate from 50 mph to 0 mph. Or was this something the lawyer said to juice up the payment? -- Frank Russo
Frank Russo's physics are incorrect. The vehicle hitting an oncoming vehicle will absorb far more kinetic force than the vehicle hitting a wall. See this Math Forum link for an explanation of why. Russo's correct to the extent he means to say that the speed is only one factor in determining how much damage is done. -- Ted Frank
As many of your readers know, California's MICRA medical malpractice law allows a maximum compensation of $250,000 for pain and suffering. Three years ago, trial lawyers succeeded in opening up a major new loophole in MICRA. The survivors of a man who died of cancer had sued their father's doctor for allegedly underprescribing pain medication. Their lawyers argued that they should be able to sue not only under malpractice law but also under California's "Elder Abuse" law, which provides for unlimited damages. Although this argument undercuts the intent and spirit of MICRA, Judge Barbara Miller of Alameda County court ruled in its favor (see American Medical News, Mar. 20, 2000) and the family got a judgment of $1.5M against the doctor.
Two years later, Judge Miller got an award from the trial lawyers' local organization, not for anything in particular, just for being a great judge. This award was announced on the official government web page for the Alameda county courts. Apparently, the judges here do not realize that receiving awards from a private pressure group might be something to be ashamed of, rather than to brag about. -- Steve White, Berkeley, Calif.
Teachers, businessmen, physicians, and police officers are made accountable for their actions by the threat of lawsuits, fines or job loss. So my question is simple: why haven't we created a system that holds lawyers accountable for bringing suits that lack merit? Malpractice trials find the defendant liable approximately 30% of the time. That means 70% of the time, the physician wins. As a physician, if I were to perform appendectomies and only 30% of my patients turned out to have a diseased appendix, I would lose my license! Yet if you achieve a similar result in private practice as a trial lawyer, you will probably be free to go on practicing with no penalty whatsoever.
It seems to me that the answer might be to create a system that simply asks the jury to decide whether a civil lawsuit in which the defendant was found innocent of wrongdoing should be deemed "frivolous". If it were found so, there would be penalties (i.e. fines, professional reprimand, etc...) for the attorneys that brought the actions. -- R. Desai, M.D., Dayton, Ohio
At present, most American courts do in principle provide remedies for frivolous litigation, but those remedies are purposely made hard to use and unrewarding except in the most egregious cases. (In 1993, at the behest of organized lawyerdom, Congress pulled the teeth from what had been a relatively successful sanctions device, Rule 11 of the Federal Rules of Civil Procedure). Aside from reinstating a stronger-than-ever Rule 11 in federal courts and its equivalent in state courts, we are intrigued by the idea of confiding to the jury, rather than judge, the call on whether or not a decided case was frivolous or without merit -- if only because it would force some of our friends in the plaintiff's bar to decide whether or not they believe their own rhetoric about trusting juries. -- ed.
Readers following the malpractice crisis may find interesting this clip regarding a jury's award of $1.54 million to a woman in whom a surgical sponge had been left after her surgery. (Hilary Bentman, "Court upholds malpractice decision", Bucks County Courier Times, Aug. 10). According to the story, hospital officials admitted the error, blaming it on nurses who had given the doctor an inaccurate sponge count. A court held that not only the hospital but also the doctor could be held liable and cited something called "the 'captain of the ship' doctrine -- meaning the doctor has responsibility for all that happens in the operating room". It rejected the doctor's argument that he had not himself been negligent and ruled that "the jury could properly find that since he himself placed the sponges in Mrs. Cox's abdomen, he remained ultimately responsible for removing them, regardless of any negligence on the part of the nurses in the operating room."
A friend of mine commented about this case that it would be irresponsible for every doctor to do his own sponge count. Keeping a patient under anesthesia for even one second more than necessary is really negligent. Yet that is what the law in Pennsylvania now seems to require. -- Beth Caucci, Clarks Summit, Pa.
I just received a notice in the mail informing me that, as a member of the class of Citibank and AT&T Universal Card customers, I was eligible for a refund under the terms of a settlement agreement reached in a class action lawsuit. A quick internet search revealed the following (PDF, see last page):
"The Cards business agreed to create a settlement fund of $18 million, most of which will be distributed automatically to cardholders and to make a cash payment of approximately $9 million for attorneys fees and costs."
My refund check is for $0.18. -- Paul Prichard, Moodus, CT
Similarly from other readers; and see Jeffrey A. Cross, I Fought the Law, Washington Legal Foundation (PDF), Half of an Empty Glass. One of the commenters on Cross's site observes: "I got 16 cents today. Funny, although the suit was about getting refunds for fraudulent late fees, I don't think I paid any 16-cent late fees." (more on class actions)
Norton Internet Security is blocking your website as if it were a criminal site. It lists the reason as "weapons". Please contact them and fix this. Norton owes you, and its users, an apology.
-- Gary Friesen, no address given
We occasionally hear of Overlawyered being blocked, and once experienced this ourselves at a public AT&T web terminal -- items on sexual harassment are what we most often have suspected of causing trouble. We don't own a copy of Norton Internet Security and can't verify whether this is (still) happening to its users. Nor have we time or energy to approach the makers of the various blocking systems about this. But it's hard for us to believe they would consciously intend to restrict access to this site.
You mention (see Dec. 2) the week in early November during which Connecticut juries in three cases rendered medical malpractice verdicts of $1.13 million, $2.2 million, and $10 million. In at least two of these suits there had already been settlements or awards from other defendants. In the case of the $10 million verdict, other defendants had already settled out of court for a reported $3 million. The remaining defendant, who was no longer the patient’s physician at the time of the incident, had a policy limit of $1 million. The plaintiff's attorney is now exploring options for collection of the remaining $9 million.
Although the details of the case differ widely among newspaper accounts, it has been reported that the defendant's insurance company refused settlement, citing what it viewed as the absence of negligence on the part of the physician. The Connecticut Law Tribune quotes the attorney as saying, "the insurance company was so greedy [that it] never offered a red cent…" and "It's mind boggling that this insurance company -- run by doctors, which may be the first mistake -- forced both the plaintiffs and the defendant to go through the agony of a trial." In other words, a defendant has no right to adjudication, even though suits against physicians result in a defense verdict 80 percent of the time!
If the above referenced physician's personal assets are disgorged, shock waves will be sent through the medical community. Currently most physicians have insurance limits of $1 million, as higher limits are seen as unaffordable and often unobtainable. If these limits do not satiate the avarice of the litigation industry and personal financial ruin becomes a real threat, the exodus of physicians from Connecticut will accelerate. Why miss important milestones in a child’s upbringing -- a first football game or a first acting role in a play -- only to learn that with all the sacrifice you can no longer protect your family?
-- Leonard Ferrucci, New Canaan, CT
Regarding your Nov. 24 report on the $8.8 million jury award against the state of Washington over charges that state social workers neglected the problems of two delinquent teenagers in foster care: I'm trying to think of a solution for the general problem presented in this case that would assure that county social service agencies act responsibly (on behalf of the public-taxpayer).
A few years ago, while serving as a Law Guardian, I discovered that our county DSS had unofficially told its staff social workers and all private agencies that no child was to be placed in the (more-expensive) restrictive forms of foster care if the child's family was willing to participate in (cheaper) at-home "preventive" services. This meant that children who were clearly out-of-control and dangerous were allowed in the community, schools, etc. The sole purpose was to save money.
In one case, where I was the law guardian, the social workers covered up problems to keep the judge from placing the child into a restrictive placement, after the judge had declared from the bench that even one additional incident would result in the child being taken from his home. They repeatedly told the judge, in writing, that all was going well -- not mentioning that the boy had been suspended from school over 20 times in one school year, often for violent outbursts.
If such a child causes severe injuries, isn't the County responsible in some way? Has it been pennywise but pound foolish with the public trust and purse?
Any thoughts? -- David Giacalone
Re: your Nov. 25 report: It is worth noting that the Supreme Court of England and the Superior Court of Ontario both have specialized Commercial Court lists, for the expeditious handling of a limited class of cases.
The Commercial List was established in Ontario in 1991 based on the English practice which has existed since at least 1983: see Ninemia v. Trave Schiffartsgesellschaft [1983] 1 WLR 1422. -- Geoffrey Newbury, Barrister and Solicitor, Mississauga, Ontario
Re: Fox v. Franken (Aug. 12): I like your site and believe in personal responsibility but corporations, especially those in the business of news, parody or other entertainment, should be ashamed of clogging the courts and their publications suing over something like this. The claim is colorable but a news network that preaches personal responsibility and knows the trademark laws as well, should know better.
People game the system, but corporations do as well. If you had a nickel for every frivolous lawsuit bought in the name of trademarks, or bogus tortious interference with contract type cases, you would be be a rich man. So I think Fox should be ashamed. Perhaps there a connection between people thinking there is a remedy for every wrong or a system to be gamed if our news organizations show them that they can use the same system? -- Trevor Jefferson, no address given
The tort lawyers have been arguing that the crisis in malpractice insurance is largely caused by the fact that insurance companies are not getting the fat returns on investments they were getting in the 1990's and thus have to charge more to break even. I have seen this offered up several times on TV news shows while the interviewing reporter nods sagely in the cutaways and says nothing. But it is obviously nonsense. For one thing, insurance companies are greatly restricted as to what they can invest their reserves in -- no startup dot-coms for them, but treasuries, triple-A bonds, real estate mortgages, etc. And with integrated financial markets (which have been around since the telegraph), interest rates are uniform throughout the country. So, if this were the problem, and not fast-rising costs, insurance rates would have risen uniformly across the country. They didn't. They have risen far less in states such as California (of all places) with strict limits on pain and suffering. -- John Steele Gordon, North Salem, N.Y. (see also Jan. 24-26)
Objectively, your column [FoxNews.com] ranks about as high as an ant can jump. Every source that you use is stunningly anti-lawyer. Additionally, the 38 million in punitive damages that you cited will most certainly be reduced either in a motion for new trial, or on appeal. Nominal damages will not constitutionally support a punitive award that large.
Please tell people the whole truth. Be objective. Tell both sides. This is just getting ridiculous - journalists and columnists on both ends shading facts and using common misconceptions to bolster their arguments.
Are you even a lawyer? -- Adam Allen, wilsonlawfirm.com
You're so right -- how dare nonlawyers comment on the legal system? Or presume to rely on such "stunningly antilawyer" sources as the AP, L.A. Times and San Francisco Chronicle? We couldn't have made our point better ourselves-- ed.
