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Lawsuit Heaven

A Korean report says that country’s developing economy is starting to look very familiar:

It is no exaggeration to say that Korea is the “heaven of lawsuit” as the number of criminal charges and civil suits in the country is 155 times and six times higher than that of Japan, respectively.

People tend to go to court even at a slightest provocation as they institute a suit to retrieve money even if they had not signed any written contract and file for criminal charges when the case can be resolved in a civil suit.

It sounds as if the “filing” of criminal charges is a lot easier in Korea than it is here. I do civil litigation, and clients always want to know whether the fraud, or false statements under oath, or other bad acts they are positive our adversaries have done have a criminal down side. The answer, of course, is almost always “no” — prosecutors are virtually never interested in bilateral wrongdoings. That is as it should be; dragging the threat of prosecution — unspoken or otherwise — into civil litigation only makes bad situations worse (and gives your adversary a constitutional justification not to testify). Again, by all indications something very different is going on over there:

“Although over 600,000 people are being charged each year, a significant number of cases are dropped as they cannot be considered as a crime. We cannot overlook the seriousness of the current legal situation as over-issued charges are perturbing prosecutors from inspecting more crucial cases such as bribery,” said Shin Kyeong-sik, the head of planning department at the Supreme Public Prosecutor’s Office.

Perhaps the Prosecutor’s Office in South Korea should be a little more Supreme.

The Wall Street Journal on “Do it Yourself Tort Reform”

In today’s Journal, an article by the people behind Medical Justice:

In 2002, we launched Medical Justice, a membership-based organization designed to complement tort reform and to head off frivolous lawsuits. ….

Our service has two principal components. First, we look at the quality of so-called expert-witness testimony. Behind every frivolous lawsuit there is an “expert” — usually a physician skilled in testifying before juries and often compensated to the tune of $10,000 dollars a day. Put bluntly, many of these “experts” are frauds, as this newspaper has repeatedly shown in cases regarding asbestosis and silicosis claims….

Medical Justice’s second tool is a patient-physician contract. That contract states that in a legitimate dispute, both sides will utilize only those experts who belong to such societies and who strictly follow their code of ethics. This limits the list to reputable and accountable physician experts, thus precluding the use of hired guns or medical “witnesses having other rational explanations” — better known by their acronym.

Does it work? Yes. After five years of collecting data, we know that Medical Justice plan members are sued at a rate of under just 2% a year. The average doctor is sued at a rate of 8%-12% per year. And the company is top heavy with physicians in “high-risk” specialties.

Private law saves the day? Perhaps — but how long before the plaintiffs’ bar fights back with legislation?

Killer Quakers

Hierarchical government a pain? Separation of powers getting you down? Not a problem! Not if you’d rather be in Philadelphia:

Two Philadelphia City Council members plan to file suit against the state House and Senate Wednesday for preventing the city from passing more restrictive gun laws.

Council members Donna Reed Miller and Darrell Clarke called the city’s surging homicide rate in part a “state-created danger.”

Lawmakers have tied the city’s hands by not giving it the authority to limit gun purchases to one a month and require lost or stolen guns to be reported, according to Miller.

I’m sure the city does feel bad that it can’t pass more laws to make it feel good about the fact that its residents have turned America’s first capital into a shooting gallery… mm, like its present capital. But that is the fool’s perspective; for see how the state is even described — in its role in actually arrogating to itself the right to set policies for, er, the state — not as a sort accessory to crime, or, switching to civil liablity, a but-for cause or even a proximate cause. No, homicide in Brotherlovopolis are a “state-created danger”! Only a sage who merits a seat on the Philadelphia City Council can see these murders committed by carbon-based entities in Philadelphia for what they are: The product of passive, robotic mayhem-slaves of the blood-lusting Commonwealth of Pennsylvania, doing its cynically William Penn-garbed bidding and killing! Killing! Killing!

Quaker State indeed.

Bulldozer’s progress

They didn’t tell me guest-blogging at Overlawyered would be an autopilot proposition, but thanks to James Taranto, it is — complete with a law professor to do the work for me:

The family of a woman killed trying to prevent the demolition of a Palestinian home in 2003 asked a federal appeals court panel to reinstate its lawsuit against Caterpillar Inc., saying the company knew bulldozers it sold to the Israeli government were being used to commit human rights violations.

“Caterpillar sold this product knowing — or it should have known — it would cause exactly this harm,” one of the family’s lawyers, Duke University law professor Erwin Chemerinsky told the three judges from the 9th U.S. Circuit Court of Appeals on Monday.

Yes, a law professor is making this argument. Okay, a law professor who blogs at Huffington Post, but still? No, he’s not a new face; but he certainly remains a brazen one. For in our bizarro world, right is a very special kind of wrong — the promotion of violence (by the likes of Rachel Corrie) is peace;the sale of construction equipment (by Caterpillar) is murder; and fallacious legal argumentation is the product of one of the “the top 20 legal thinkers in America.”

This could be one even the Ninth gets right. Meanwhile,

Corrie’s parents said after the hearing that they have been carrying on their daughter’s work since she died.

“You can’t go back to the way things were before, so you determine a path forward,” Cindy Corrie said.

I thought that’s exactly what they were suing over!

Class actions from scratch

The important issues challenging our society remain at the forefront of the class action bar:

Microsoft has been targeted by a $5m (£2.5m) lawsuit over its Xbox 360 console and the infamous yet almost forgotten scratched disc saga. There have for a long time been many rumours about the Xbox 360 scratching game and movie discs.

Count on lawyers never to forget. What’s this about?

A growing number of Xbox 360 customers are reporting having problems with their disc’s getting scratched by the DVD drive when switching the unit’s position from vertical to horizontal and vise versa.. Initially we thought this was the usual fanboy vs. hater propaganda that swirls around the launch of any new console like this. It didn’t take long until the seriousness of the situation…

… which is explained at some length. Not everyone is sympathetic to the victims in this dog-eat-dog world. But most of the discussion of this burning issues seems to go back, indeed a couple of years.

On the other hand, there’s always the Old World, ever eager to distract from its own coming demographic obsolescence by beating up on that most American of companies, Microsoft. Yes, less than a month ago word got out that the EU lean was on Microsoft to address the problem — which Microsoft seems grudgingly to admit to.

One month: That’s about long enough to read the story, do some research, find a lead plaintiff, and file the lawsuit. So foes of the class action can thank the European Union for this one. Considering the “popularity” of Microsoft on either side of the pond (right up there with plaintifs’ lawyers), not much sympathy is to be expected. But this is an interesting exercise in how the once-forgotten can, in the new global economy, still be resurrected, as long as the statute hasn’t run.

Free market magic

You can make these things up — economists do it all the time — but it’s a lot more compelling when they really happen (link added):

An influx of doctors lured to Texas by new limits on malpractice lawsuits has overwhelmed the state board that screens candidates for medical licenses, creating a backlog that forces many applicants to wait months before they can start seeing patients.

Officials said many of the relocating physicians are filling shortages in areas such as Beaumont, where trauma patients previously had to be flown other cities because there weren’t enough surgeons to treat them.

(Italicized part added:)This sounds like great news — more doctors coming back into the system. But who knows? Chances are the plaintiffs’ bar can find a way to spin this as an ominous development — the return of the malpracticers. Now it’s entirely possible that this represents an influx of marginally competent doctors who can’t afford to practice elsewhere because their malpractice premiums are justifiably sky-high. As it is, the article in the Houston Chronicle quoted above says that a simple background check takes 41 days — hence the huge bottleneck — and that more complex histories such as those of veteran or out-of-state doctors will take correspondingly more time. So it doesn’t seem as if the Texas regulatory authorities are lowering the bar too too low.

Indeed, any supply-and-demand interplay where the market is allowed to be distorted by an industry like the insurance business, whose operations seem to defy normal ways of doing business and which is itself hopelessly regulated, is going to be hard to predict.

But in fact, one thing that happened shortly after Texas’s Proposition 12 was passed is that malpractice insurance rates started dropping almost immediately. That’s consistent with reduced financial exposure, but certainly not with an influx of incompetent physicians coming to the “market” (i.e., seeking medical malpractice insurance). The pushmepullyou of the interplay between these things is the sort of thing that makes insurance underwriters such exciting company at a weenie roast, so I won’t even try to have at it.

Again, in any event, this is a stunning example of the invisible hand at work. But surely there is a down side, and not only to med-mal plaintiffs’ lawyers? Of course: Med-mal plaintiffs themselves, who no longer can play in the Texas state court injury lottery. That doesn’t mean other personal injury plaintiffs can’t, unfortunately. But one step at a time.

God forbid anyone reading this or their loved one should be in a position to be seeking damages, economic or otherwise, for medical malpractice. But short of the argument that, well, higher non-economic damages should be available just because they should — or proof, in ten years, that there’s more malpractice in Texas than there was before because of the influx of quack doctors attracted to the free bread crumbs of “easy” med-mal limits — this quacks like a policy that works.

The civil right to be cruel

But first, a greeting, and a thank you to the Overlawyered boys for inviting me to guest-blog this week. I’m Ron Coleman, proprietor of the LIKELIHOOD OF CONFUSION® blog on trademark, copyright and free speech law, and a contributor to Dean’s World and other things. In short, I love practicing law so much that I spend most of the day blogging.

So much for self-promotion (if you can call it that) — now to the promotion of animal cruelty — it’s all the rage, after all:

A new state law against fighting roosters violates a treaty that ended the Mexican-American War, a cockfighting association claims in a lawsuit.

The New Mexico Gamefowl Breeders Association and six businessmen argued that the law infringes on rights protected under the 1848 Treaty of Guadalupe Hidalgo, which made New Mexico a U.S. territory.

The lawsuit contends the treaty guarantees civil, political and religious rights, privileges and immunities to the people of New Mexico.

Many of the association’s 2,000 members “are devoted to rural lifestyles, of which gamefowl breeding and-or participating in gamefowl shows and fights are, in New Mexico, long-standing, culturally bound and significant activities,” the lawsuit said.

Wow, some treaty! It guarantees the right to — well, to do what, exactly? Let’s ask the Humane Society:

Cockfighting is a centuries-old blood sport in which two or more specially bred birds, known as gamecocks, are placed in an enclosure to fight, for the primary purposes of gambling and entertainment. A cockfight usually results in the death of one of the birds; sometimes it ends in the death of both. A typical cockfight can last anywhere from several minutes to more than half an hour.

The birds, even those who do not die, suffer in cockfights. The birds cannot escape from the fight, regardless of how exhausted or injured they become. Common injuries include punctured lungs, broken bones, and pierced eyes. Such severe injuries occur because the birds’ legs are usually fitted with razor-sharp steel blades or with gaffs, which resemble three-inch-long, curved ice picks. These artificial spurs are designed to puncture and mutilate.

Nice. And, best of all, tanto auténtico! What judge could resist such a rootsy appeal to heartless blood lust? Plus there’s dinero at stake, too.

Okay, so what’s the legal theory again? Oh, yeah, that’s right: This novel civil right — the right to engage in any “long-standing, culturally bound and significant activities” — is enshrined in the Treaty of Guadalupe Hidalgo. Well, here’s the Treaty: You see the clause guaranteeing the inalienable right to “long-standing, culturally bound and significant activities”?

No? Okay, well how about just the piece about roosters? Any specifications for ice picks?

Me neither. The only thing I remember about the unlikely juxtaposition of ice picks and Mexico is a certain unpleasantness involving some murderous Bolsheviks. Now, we saw then that “breaking a few eggs” can be unpleasant, but these poor chickens deserve better. Plaintiffs in this lawsuit, however, don’t.

UPDATE: Wow. There’s more to this civil right than I thought!