Last week I took part in no fewer than eight panel discussions (these hosts work you hard) at the University of Colorado’s 56th Conference on World Affairs. The Boulder Daily Camera covered the final panel, on taxes (Matt Branaugh, “Turning Up the Heat on Taxes”, Apr. 10) while the student-run Colorado Daily ran a story on Tuesday’s session, concerning the role of the media in court proceedings (Katherine Crowell, “‘Trial by press’ unjust”, Apr. 7). Also, while I was speaking in Orange County, Calif. last month, Kyle Beckley interviewed me for the Chapman University Law School publication, the Esquirer; an excerpt appears at Beckley’s website, OneL7 (Apr. 4).
Posts Tagged ‘Colorado’
In Boulder Apr. 5-9
As previously mentioned, I’ll be at the University of Colorado Apr. 5-9 participating in the 56th Conference on World Affairs and expect to do little if any posting until next weekend (schedule of panels I’ll be on).
Irvine Federalist speech Wednesday
This Wed., March 24 (6:00 reception, 6:30 program) I’ll be in Southern California, speaking to the Orange County chapter of the Federalist Society. The event will be held at the offices of Knobbe Martens Olson (no relation) & Bear in Irvine. Details and RSVP here. Plus: for those who will be in the Boulder, Colo. area Apr. 5-9, the Conference on World Affairs has now posted the schedule of panels I’ll be on.
“BBB pulls ad after flak from attorney groups”
The Denver and Colorado bar associations have succeeded in getting the local Better Business Bureau to yank from the airwaves a 15-second ad premised on the notion that there might actually be some attorneys out there who exploit their clients. “You inherited a fortune … You hired a lawyer … Now it’s his fortune,” the announcer says in the ad. Declaring the ad offensive, the bar associations demanded a hearing before the BBB’s own unfair-advertising panel. Jean Herman, president and chief executive of the Denver/Boulder BBB, agreed to pull the ad, saying, “I don’t agree with them … but I don’t want to go around ticking people off”. Ad spots warning about bad plumbers, mortgage lenders and limousine drivers will continue as usual in the BBB’s “Check With Us First” campaign. Interestingly, Greg Martin, deputy executive director of both bar groups, said the groups would not agree to a suggestion that the offending line be amended from “You hired a lawyer” to “You hired the wrong lawyer.” “Obviously, our goal was not to have that ad on TV anymore,” Martin said. (John Accola, Rocky Mountain News, Mar. 13). David Giacalone (Mar. 16) has an excellent analysis. Of course, it remains perfectly normal and acceptable for lawyers’ own ads to promote the idea that other people’s professions and businesses are injurious and not always aboveboard.
Be sure to check out the last few sentences of the Rocky Mountain News article, in which Martin, the bar official, blasts the whole idea of applying to lawyers the BBB approach of documenting a record of complaints so that consumers can see for themselves which operators have numerous unresolved grievances outstanding. Martin says the BBB lacks any “special knowledge about attorneys” and says the profession is already highly regulated by its own (with emphasis, as we might add, on its own) disciplinary committees. Now suppose that some other profession or industry — medicine, say — were to assert that its mysteries are so esoteric, and its success in self-regulation so complete, that lay observers should not presume even to compare notes with each other on their bad experiences with it. Hard to imagine, these days, isn’t it?
Posting lull
Postings from me will likely be sparse over the next few days as I’m on the road: the International Association of Defense Counsel has invited me to speak at their midyear meeting in Orlando. Next week there’ll be more travel, including a speech next Wednesday at a conference put on by the Center for Constructive Alternatives at Hillsdale College in Michigan. There’s more ahead, including two New York City events later this month (details to come); I’ve also agreed to be a participant in the University of Colorado at Boulder’s 56th Conference on World Affairs this Apr. 5-9. If you’re an event sponsor interested in booking an appearance, you can email me directly through this site or contact the Manhattan Institute at 212-599-7000.
Doctors on trial
In last week’s issue of the Journal of the American Medical Association ($ access), Baltimore physician David Merenstein writes about a malpractice case which resulted in a $1 million verdict against the residency program in which he was working (though he himself was let off the hook for liability) over his failure to insist on a PSA test in a middle-aged male later diagnosed with advanced prostate cancer. Central to the plaintiff’s attorney’s strategy was to put on trial the mode of medical practice known as “evidence-based medicine”. Medical blogger Ross Silverman at “The Bloviator” (Jan. 8), who is often critical of attempts to limit malpractice litigation, nonetheless finds the result in this case “horrible” and “ridiculous”. MedRants (Jan. 8 and Jan. 9) comments, as does Medpundit Sydney Smith (Jan. 9). More: The LitiGator, from Michigan, also comments (Jan. 18)
In the same Jan. 9 post, Medpundit links to an illuminating Cleveland Plain Dealer piece (Harlan Spector, “Fleeing the malpractice crisis”, Jan. 4) about a neurologist who lost his malpractice insurance and moved out of Ohio after he was hit with six claims. Six claims sounds like a lot, and we keep hearing that “problem doctors” account for a large share of the malpractice problem; but how weak were the six claims? Well, four of the six were dismissed before he had to meet with a lawyer; in a fifth, which is pending, the plaintiff has no lawyer of record. And the sixth? That resulted in a defense verdict, and was called “frivolous” by the presiding judge, who however also said: “They paid these experts who sign affidavits, and I can’t throw the case out.” “I feel like I’m being shot at all the time,” said the defendant, Dr. Bruce Morgenstern, who moved to less litigious Colorado.
Auto insurance won’t cover rape
Updating our story of Mar. 27-28, 2002: the Colorado Supreme Court by a 4-3 margin has reversed lower court decisions that ordered State Farm to pay auto insurance benefits to a woman who was kidnapped and raped in her car. (Sean Kelly, Denver Post, Oct. 15). Plus: Curmudgeonly Clerk has more (Oct. 18).
Secondhand smoke vs. firsthand contraband
One of the larger costs from the lack of tort reform is not so much the damages awards to undeserving plaintiffs or the fees that plaintiffs’ lawyers extract or the cost of hiring lawyers to defend, but the social costs imposed when decisions are made to avoid the risk of litigation: playgrounds shut down, bans on cold weather swimming (“Don’t be so wet”, The Economist, Oct. 2 (subscription required)).
The repercussions have been particularly severe in Colorado, where a fear of secondhand smoking suits caused the prison system there, where the vast majority of the 18,000 prisoners incarcerated are smokers, to ban tobacco. The result? An immediate creation of a black market with markups for tobacco far exceeding that for cocaine, and the expected associated violence and corruption that goes along with a widespread black market in prison. Eighteen guards, teachers, and supervisors have been prosecuted in three years, and a prisoner newsletter calls the tobacco contraband law “a retirement assistance program for correctional officers.” (Kirk Mitchell, “Ban turns tobacco into prison prize”, Denver Post, Oct. 13).
Say It Ain’t So, Ko
A Colorado DA has gone ahead and charged LA Laker star Kobe Bryant with third-degree sexual assault. (“Kobe Bryant Charged With Sexual Assault,” AP, Jul. 18). He’s already admitted to committing adultery (which would still keep him near the top of the “NBA’s Most Noble Stars” list). But given the severity of this charge — it’s borderline rape, if not rape itself — there’s not going to be a wrist-slap plea like in the Chris Webber perjury case. (“Webber’s Guilty Plea Ends Michigan Probe,” AP, Jul. 15).
The statements made today by the DA in Kobe’s case are troubling, particularly his claim that “[these charges] did not come easily.” (ESPN, Jul. 18). My friend Ananda Gupta pointed out that a cynic would believe the DA would want to press charges — after all, Marcia Clark is a household name even almost a decade post-OJ. On the other side, if the DA has a case, where’s the difficulty? (If you want another OJ reference: “If there was a fight, you must indict.”)
Yes, the DA has prosecutorial discretion as to what cases to bring, but if, in his words, he believes he “can prove this case beyond a reasonable doubt,” the decision should be a mechanical one. There are few exceptions to this (especially in sexual assault cases), and the popularity of the would-be defendant and related fall-out isn’t on the list of loopholes. Or at least it shouldn’t be.
Essay on loser-pays
The following essay was written circa 1999 by our editor and formerly appeared on the site’s topical page on loser-pays.
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America differs from all other Western democracies (indeed, from virtually all nations of any sort) in its refusal to recognize the principle that the losing side in litigation should contribute toward “making whole” its prevailing opponent. It’s long past time this country joined the world in adopting that principle; unfortunately, any steps toward doing so must contend with deeply entrenched resistance from the organized bar, which likes the system the way it is.
Overlawyered.com‘s editor wrote an account in Reason, June 1995, aimed at explaining how loser-pays works in practice and dispelling some of the more common misconceptions about the device. He also testified before Congress when the issue came up that year as part of the “Contract with America”. Not online, unfortunately, are most of the relevant sections from The Litigation Explosion, which argues at length for the loser-pays idea, especially chapter 15, “Strict Liability for Lawyering”.