Now, Hawaii is considering legislation similar to California’s that would give immunity to property-owners sued by people injured in the course of committing particular felonies, though it’s not clear to me that it would apply to unarmed burglary, which seems to only be a “Class C” felony in Hawaii.

Six months ago on Overlawyered… is a post from Overlawyered - Chronicling the high cost of our legal system

Fair enough: it’s their website, and they’re entitled to slant their comments section so that critical comments are not posted, and I could use all the disincentives I can get not to waste time in comments sections of other blogs. But I find it quite amusing that this policy is engaged in by a website that (1) threw a veritable tantrum because we stopped posting obsolete trackbacks and accused us of censorship because we wouldn’t let Justinian Lane monopolize the comments section with off-topic comments and (2) cares more about hypocrisy than actual wrongdoing.

Like rain on your wedding day is a post from Overlawyered - Chronicling the high cost of our legal system

Except more facts are coming to light about Borja, and as the New York Times reports, “very few of the most dramatic aspects of Officer Borja’s powerful story appear to be fully accurate”:

• On September 11, Borja reported for duty… at the tow pound in Queens where he spent most of his career.
• Borja did not work near the site until December 24, 2001, “after substantial parts of the site had been cleared and the fire in the remaining pile had been declared out.”
• Borja thus never worked in the smoldering pit.
• Borja never worked a 14-hour shift; rather, he worked a few shifts for a total of 17 days directing traffic to add to his overtime pay, most of which were in March and April 2002, and all blocks away from Ground Zero.
• Borja smoked a pack a day until the mid-1990s.

Of course, evidence may yet arise linking Borja’s death to his work near the site. The New York Police Department and doctors, however, have yet to do so. (Sewell Chan and Al Baker, “Weeks After a Death, Twists in Some 9/11 Details”, New York Times, Feb. 13). About 50,000 Americans are diagnosed with pulmonary fibrosis each year; the fatal disease has no cure.

Update: David Nieporent has an amusing comment about Bizarro-Overlawyered’s shameless reaction to the revelation.

The post David responds to makes the mistake of making clear its political motivations for exaggerating health hazards from Ground Zero cleanup: a partisan smear of possible Republican presidential nominee Rudy Giuliani.

The Cesar Borja case gets more complicated is a post from Overlawyered - Chronicling the high cost of our legal system

October 27 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Here’s what the Public Citizen press release says: “The study also found that when these corporations did file lawsuits, they and their attorneys were 69% more likely than individual tort plaintiffs and their attorneys to be sanctioned by federal judges for filing frivolous claims or defenses.”

In fact, all the study did was look at the most recent hundred Rule 11 sanctions issued by federal judges. As we’ve discussed before, what Rule 11 considers “frivolous” is considerably narrower what the common non-lawyer considers “frivolous.” But let’s take Public Citizen’s methodology at face value and ignore the issue with the small sample size, or the fact that Public Citizen didn’t investigate whether the sanctions were reversed on appeal. Out of the 100 sanctions, a whopping thirty-five were issued to corporations. Thus, corporations, say Public Citizen, are more likely to be sanctioned.

Now, those of you who have graduated second grade might be wondering, “But isn’t 35 a minority of 100?” And you would be right. Public Citizen gerrymandered corporations into the leading source of sanctions by (1) combining all corporate suits into one group; and (2) separating individual suits into three groups: individual tort suits with an attorney, individual non-tort suits with an attorney, and pro se suits. Once those 65 sanctions are divided into three different categories, only 22 of them are for represented individuals suing in tort, and 35 is 69% more than 22. Thus, says Public Citizen, corporate lawsuits are 69% more likely to be sanctioned than individual tort plaintiffs.

Except even this manipulatedly bogus statistic is wrong on its own terms. “More likely” requires a denominator. And, as Public Citizen points out, corporations file 3.3 to 5.8 times as many lawsuits as individual tort plaintiff, in part because half of all corporate suits are contract suits, and Public Citizen omitted individual contract suits from the other side of the equation. But only 1.7 times as many sanctions are issued to corporations. Do the junior-high-school math with denominators, and one finds that, in fact, using Public Citizen’s data, individual tort plaintiffs represented by attorneys are between 107% and 264% more likely to be sanctioned for frivolous filings: Public Citizen and DMI got it precisely backwards. (NB also that Public Citizen’s press release made the similar mathematically-illiterate error of translating “3.3 times as many lawsuits” into “3.3 times more likely to file a lawsuit,” despite the absence of a comparable denominator: Costco, for example, engages in millions of times as many transactions as an individual.)

Of course, the main problem with the study is that it’s attacking a straw-man. Have you seen a reformer that doesn’t care about corporate litigation? Certainly not the reformers who post to Overlawyered, because many of the lawsuits mentioned in the 2004 Public Citizen study were criticized here first: April 2000; Jun. 29, 2004; Nov. 22, 2003. It’s almost as if they got the cases from Overlawyered itself. The study also criticizes the number of subrogation suits without mentioning that many reformers wish to abolish the collateral source rule that makes subrogation suits necessary. (I’m not one of those reformers, though I believe in other reforms that would reduce the need for separate subrogation litigation.) Regular Overlawyered commenter David Nieporent notes:

1) Since the subject is “tort reform,” why are you bringing up a study that talks about litigation generally, rather than tort litigation? The study itself makes clear that it includes such litigation as landlord-tenant and mortgage foreclosures, not to mention routine collection cases. Indeed, businesses almost never file tort suits, if you check the data at the back of the study.

2) Why you think “hourly defense firms,” rather than trial lawyers, are filing these suits on behalf of businesses is beyond me. You think “hourly defense firms” are handling routine collection work or landlord-tenant cases?

3) Counting the number of suits is pretty misleading, since suits can have different numbers of parties. One class action may have thousands of plaintiffs. If we’re trying to measure the rate at which individuals sue, such a suit should count as thousands of suits, not one; the fact that those are consolidated tells you nothing about how likely individuals are to sue.

That Cyrus Dugger and GTL got it so wrong shows the danger of reflexively regurgitating trial-lawyer propaganda without thinking.

Lying with statistics: Public Citizen edition is a post from Overlawyered - Chronicling the high cost of our legal system

Except if one actually goes to the document, buried within a lot of rhetoric criticizing reformers for mentioning the Bodine lawsuit, we learn: Ricky Bodine was a 19-year-old high-school graduate who, with three other friends (one of whom had a criminal record), decided the night of March 1, 1982, to steal a floodlight from the roof of the Enterprise High School gymnasium. Ricky climbed the roof, removed the floodlight, lowered it to the ground to his friends, and, as he was walking across the roof (perhaps to steal a second floodlight), he fell through the skylight. Bodine suffered terrible injuries to be sure, though one questions the relevance: if the school is legally responsible for burglars’ safety, it doesn’t matter whether Bodine stubbed a toe or, as actually happened, became a spastic quadriplegic. But I fail to see what it is that reformers are supposedly misrepresenting. A burglar fell through a skylight, and sued the owner of the skylight for his injuries. Bodine sued for $8 million (in 1984 dollars, about $16 million today) and settled for the nuisance sum of $260,000 plus $1200/month for life, about the equivalent of a million dollars in conservatively-estimated 2006 present value.

In other words, a burglar fell through a skylight, and blamed the skylight’s owners for his injuries; because the law permits such suits, and because the law does not compensate defendants for successful defenses, Bodine had the ability to extort hundreds of thousands of dollars from taxpayers for injuries suffered in the course of his own criminal behavior. Bodine’s only hope of recovery is the law’s rejection of proximate cause as prerequisite to liability. Assemblyman Alister McAlister, the Democratic legislator who used the story to push for reform, described the facts correctly. McAllister didn’t mention that Bodine was 19, but so what? He didn’t mention that Bodine was 6’1″ and a waiter, either, and all three facts are irrelevant. Lilliedoll accuses McAlister of falsely claiming that the legal theory was “failure to warn,” but that’s hardly an inaccurate description of a duty-to-trespassers theory: the alleged duty could have been fulfilled by posting visible warnings to trespassers of the dangers of traversing the roof.

Were the skylights safe? Perhaps not; there had been other accidents (all involving trespassers) at other schools, though not long enough before Bodine’s accident for a school bureaucracy to have time to react. But, for most people’s sense of justice, that is hardly relevant: Bodine had no business being on the roof in the first place. In the words of anti-reformer Justinian Lane, “If you can’t do the time, don’t do the crime.”

If this is the best the anti-reformers can do to point out “distortions” in the reform movement, I’d say we’re doing a pretty good job. (Earlier in the series: Sep. 17; Sep. 18). And once again, the only people misrepresenting anything are the supporters of the litigation lobby, who once again fail to honestly engage with the reform position in their efforts to rebut it.

Update: David Nieporent notes in the comments:

Ted, you missed the best part of the skylight anecdote. In another post on Tortdeform, Cyrus Dugger approvingly cites a long passage from a book review of an anti-tort reform book. That passage also attempts to debunk the skylight story. But here’s how it describes it:

The actual case involved a teenager who was on the roof of a school and, by the best accounts we can find, was trying to redirect a light because they were trying to play basketball. And while he was on the roof he stepped through the skylight, which had been painted over black. So this may have been a trespasser, but it wasn’t a burglar. (Emphasis added.)

That’s right: in this account which is trying to debunk myths about the case, cited approvingly by Tortdeform, it turns a thief into a guy “trying to redirect a light.”

The burglar and the skylight: another debunking that isn’t is a post from Overlawyered - Chronicling the high cost of our legal system

Another such post is Justinian Lane’s “The Myth of the Frivolous Lawsuit.” The standard trial-lawyer talking point on such issues is to redefine “frivolous lawsuit” to consist of an exceedingly narrow subset of what it is laypeople are talking about when using the term “frivolous lawsuits,” note that the legal system has some mechanisms to address this narrow subset of cases, and then conclude that there’s no problem and thus no need for reform. (Or, as per John Edwards, announce Potemkin legislation to tackle this artificially constrained set of “frivolous lawsuits” that does nothing to actually address the problems of the tort system.) But Lane, perhaps because of his unfamiliarity with the legal system, bites off more than he can chew and inadvertently proves the reformers’ point.

Here’s the critical part of Lane’s argument why frivolous lawsuits are a “myth”:

But what if instead of putting barriers up that could prevent legitimate lawsuits from being filed, there was a tool that could quickly and easily dismiss frivolous lawsuits? What if this tool not only dismissed frivolous lawsuits, but could also be used to force the plaintiffs in frivolous lawsuits to pay the attorney fees of the defendant? Wouldn’t such a tool be a better solution than passing laws that would hurt individuals with legitimate lawsuits?

This tool not only exists, but has been in use in America since 1937; it’s called the Summary Judgment.

The purpose of the summary judgment is to determine whether there is a genuine need for trial. When a party files a motion for summary judgment, they’re telling the court that there is no need for trial because the facts and law applicable to the case would prevent the other side from winning.

We’ll use a fictitious car wreck as an example of how a summary judgment would dispose of a frivolous lawsuit:

Mr. Smith runs a red light and slams into Mr. Jones. Mr. Smith claims the light was green, but two witnesses say the light was red. Mr. Smith is found to have a blood alcohol level that is nearly twice the legal limit. Mr. Smith doesn’t dispute the fact that he was drunk, but still decides to sue Mr. Jones for the damage to his car and for his medical bills.

Mr. Jones hires a lawyer. Mr. Jones’ lawyer spends a few hours drafting a motion for summary judgment. At the end of the motion, Mr. Jones’ lawyer requests he be awarded attorney’s fees from Mr. Smith because the lawsuit is frivolous.

The lawyer for Mr. Jones files his motion for summary judgment, and includes evidence that Mr. Smith was legally intoxicated, and under the laws of that state, therefore legally responsible for the accident, even if he didn’t run a red light.

In such a case, the judge would most likely grant the summary judgment, and Mr. Smith’s lawsuit would be dismissed. The judge could also decide to order Mr. Smith to pay for Mr. Jones’ attorney’s fees. In the end, Mr. Jones wouldn’t be out any money, and Mr. Smith would have had his day in court.

Let’s be clear here: Lane thinks that Smith has brought a frivolous lawsuit, and that the legal system should, as a normative measure, operate to (1) throw Smith’s case out of court at the summary judgment stage, and (2) award Jones attorneys’ fees. Because the legal system already does this, Lane argues, there is no need for reform.

The problem with Lane’s analysis is that his premise is incorrect. In just about every jurisdiction, Jones could not win on summary judgment; moreover, even if he could, Smith would not be liable for Jones’s attorneys’ fees. So long as Smith testifies that he had the light and Jones was the one who ran the red, it doesn’t matter how many other witnesses there are against him; there is a material dispute of fact that can only be resolved at trial, and Jones is on the hook for the trial defense—and perhaps also a verdict against him if the jury gets it wrong. This is not purely hypothetical, either; I’ve documented likely perjury in the Vioxx litigation; we’ve seen such perjury without consequence in asbestos and silicosis litigation; we’ve seen plaintiffs win huge lawsuits against auto manufacturers when the driver fell asleep (Nov. 21; Nov. 17). (And need I mention the jury that awarded millions to the woman who spilled coffee on herself?) Lane agrees that these suits are frivolous, but thinks that the summary judgment mechanism resolves them. The problem is that the summary judgment mechanism does not resolve them, and neither does the directed verdict or the judgment as a matter of law mechanisms.

Recall: “But what if instead of putting barriers up that could prevent legitimate lawsuits from being filed, there was a tool that could quickly and easily dismiss frivolous lawsuits? What if this tool not only dismissed frivolous lawsuits, but could also be used to force the plaintiffs in frivolous lawsuits to pay the attorney fees of the defendant? Wouldn’t such a tool be a better solution than passing laws that would hurt individuals with legitimate lawsuits?” Hey, I’m all for that, too! Problem is, there isn’t such a tool currently, and trial lawyers fight every attempt to add such a tool (or even to add baby steps towards such a tool) to the system.

In effect, Lane is arguing in favor of reform! Walter Olson has long argued that there should be loser pays; Lane agrees that Smith should pay Jones’s legal fees and that it would be unfair if he didn’t, but opposes reform because he thinks that such a mechanism is already in place. The problem is that there isn’t. Phillip Howard has long argued that judges should have more power to throw meritless cases out of court; Lane seems to think that this power already exists (and should be used); Lane opposes reform because he thinks the necessary mechanism is already in place, when in fact it isn’t.

That leaves two possibilities: either Lane is being knowingly dishonest in arguing against reform and trying to trick people who don’t know any better into agreeing with him; or Lane, if he knew all the facts and studied the issue, would come down on the reformers’ side, and mistakenly thinks that the system isn’t broken.

I’m inclined to believe that Lane’s mistake is one of ignorance, rather than dishonesty, and I’m inclined to believe that because I had the same ignorant opinions about reformers while I was in law school and excited about the idea of litigation as a public-policy tool. It took a couple of years of real-world experience before I realized that the theories of law school didn’t translate especially well in a legal system that tolerates abuse and perjury and junk science, where the transactions costs of litigation permitted economic blackmail, and where gigantic punitive and noneconomic damages awards multiplied the effects of jury error such that one bad jury could overwhelm a hundred juries that got it right. If Lane means what he says in his post, and if he corrects the factual errors he makes, his positions are far closer to Walter Olson’s than to ATLA’s. The question is when Lane will realize that his supposed allies don’t agree with him.

Justinian Lane: reform supporter? is a post from Overlawyered - Chronicling the high cost of our legal system