Another day, another personal attack

UPDATE: My email apparently hadn't been working properly, so I was unaware that Ted did in fact email me my comment to inform me he wouldn't approve it. (Outlook 2007 can apparently crash while still appearing to work.) I would like to thank Ted for his courtesy. My unapproved comment is as follows:

I'm on my way out the door, so look for a later reply with more detail.

Three quick points:

1: I specifically cited no less than three state constitutions which specifically guarantee the right to jury trial - not just the Bill of Rights.

2: I have no problem with instituting medical courts IF they are completely voluntary for the plaintiff, meaning there's no contractual obligation to use them. Plaintiffs should have the right to waive a jury trial.

3: I didn't attack you. I even made it clear that I don't know if you support the creation of health courts or not.

Ok, I guess I have a 4th point: Of all the critical issues facing America, do you really think we need to amend the Constitution over medical malpractice lawsuits?

Once again, Ted Frank from Overlawyered criticized one of my Tortdeform posts and personally attacked me. And once again, he refused to approve my comments to his post. I've emailed him to ask if he would send me my comments so I could post them in their entirety. If he's gentlemanly enough to do so, readers will be able to draw their own conclusions as to whether my comments were inappropriate.

In the interest of civil discussion, I've decided to respond to Ted's post in its entirety. His post is below, with my comments in red. Well, at least his revised post is here: another commenter at Overlawyered criticized Ted for making a baseless attack against me, so Ted revised his post to remove the attack.

Justinian Lane, unable to refute on the merits the idea that it might be worth experimenting with health courts to see if they improve medical care and medical justice, resorts to ad hominem:

I believe our founding fathers were some of the greatest men who ever lived. Through sweat and sacrifice, they founded the greatest country in the world. And they believed that the right for a plaintiff to seek a jury trial was so important as to be enshrined in the Bill of Rights.

I have nothing but respect and admiration for the noble men and women who have died and are dying to protect our Bill of Rights and our Constitution. I have nothing but derision for the ignominious men and women who are dying to butcher those documents for corporate gain.

Very stirring, if completely meaningless. I not only believe, but know for a fact, that our founding fathers created Article V of the Constitution, which permits amendments to correct problems created by the Constitution itself—such as, say, its abhorrent endorsement of involuntary servitude, or the poorly-thought-out presidential election process that resulted in the 1800 election snafu and the Twelfth Amendment.

"Problems created by the Constitution itself." Is Ted attempting to blame the medical malpractice mess on the Constitution? I'm more inclined to blame inept doctors and rapacious insurance company executives. I'll even concede a few "bad apple" plaintiffs' lawyers have contributed to the mess. But I don't think our Constitution has contributed to the mess in any way.

But one need not go even this far. The real flaw of Lane's thoughtless argument is that in 1791, the common-law right to a jury trial contemplated the idea of special juries. Special juries were used for complex commercial cases, for example; juries of women were used to determine the truth of claims of pregnancy. No constitutional amendment is needed for medical courts; they are well within the Seventh Amendment definition and the Founders' conception of trial by jury. See generally Professor James Oldham's book, Trial by Jury: The Seventh Amendment and Anglo-American Special Juries

Ted omits a crucial portion of my original post in which I quoted no less than three State Constitutions that each specifically protect the right to a jury trial. These protections are above and beyond the Seventh Amendment. Thus, Constitutional amendments would be required in those states. Unless of course Ted believes the Federal government should preempt various state constitutions.

Lane knows that his argument is wrong, because it was refuted in the comments of the original post:

We already effectively have legal malpractice (and business malpractice) cases decided by judges in the vast majority of instances. If lawyers were required to be held to the same standard as doctors, the majority of lawyers would be guilty of malpractice. The real question is why other professionals don't get the same benefit of the doubt that attorneys do.

We have professionals, rather than lay juries, that decide social security disability and worker's compensation and black lung fund and immigration cases. The jury system is not universal, even in America, and it (like the Constitution) is a means to an end, rather than an end in and of itself.

Ted, there's a big difference between "effectively" and "mandatory" as well as between "vast majority" and "all." As I said in the comment you refused to approve, if you were to suggest the creation of a "health court" that was purely optional for the plaintiff, I might beto the idea. As long as it was illegal for a medical provider to refuse to provide services unless a patient waived his or her rights to a jury trial.

Lane went ahead and attacked me anyway without acknowledging or addressing those refutations. What are we to conclude about the honesty of Lane and the Drum Major Institute's weblog?

What are we to conclude about your honesty, Ted? First you question my honesty for failing to address some refutations. You didn't address my point about state constitutions. Does that make you dishonest?

Further, I did *not* attack you personally. I made it quite clear that I do not know if you support the creation of health courts, or merely condemn trial lawyers for opposing them. The only ad hominem I made was to declare "ignominious" those men and women who would butcher the Constitution for corporate gain. Surely you have the reading comprehension to understand that my post would deem you ignominious if and only if you advocated butchering the Constitution for corporate gain.

Comments

[Ted]

Fascinating. According to Lane,

"I have nothing but derision for the ignominious men and women who are dying to butcher [the Bill of Rights] for corporate gain" is not an attack at all, while pointing out that Lane made a dishonest ad hominem argument and failed to address a refutation he was already aware of is a personal attack. Typical of the dishonest arguments that Lane makes.

Lane's own post here is self-refuting: he asks "Is Ted attempting to blame the medical malpractice mess on the Constitution?" when he quotes me pointing out that the U.S. Constitution permits malpractice reform and specialized juries and taking whole classes of cases outside of the jury system (and Lane still fails to address this point). Is Lane dishonest, or just intellectually incapable of basic reading comprehension? I'll let Lane explain why he asked such a dishonest question; perhaps he can propose an alternative explanation.

Lane also demonstrates that he has no business talking about this subject in the first place, saying "Unless of course Ted believes the Federal government should preempt various state constitutions." Lane is apparently unaware of Article VI, Paragraph 2 of the United States Constitution. It's not just me that thinks the federal government preempts state constitutions--it's those founding fathers Lane claims to respect so much, though he is apparently utterly ignorant of what they actually said.

[Ted]

Also, Lane's statement "Well, at least his revised post is here: another commenter at Overlawyered criticized Ted for making a baseless attack against me, so Ted revised his post to remove the attack" is a lie. Peter Nordberg criticized me for improperly generalizing Justinian Lane's dishonesty to all reform opponents. I corrected the post to reflect that Lane's dishonesty reflected solely on Lane. Not even other reform opponents have defended Lane's dishonesty.

[Personal Injury Lawyer Warren Redlich]

Funny. I saw his post from a search and came across yours next. I didn't catch his reference to you at first but see it now. I did a related post on this after seeing Philip K. Howard's article today in the Wall Street Journal. You and your readers can see it here: http://www.wredlich.com/stop-wasting-money/2007/01/tort-reform-and-half-assed.html

Comments welcome.

[Justinian Lane]

That's right, Ted. I don't know nothing about no Constitutionz. You mean states can't make up their own laws that go against the Constitution? That's crazy talk! (sigh)

What I'm sure you know I meant was, "Unless of course Ted believes that yet-to-be-passed Federal health court legislation should preempt various state constitutions."

As to your point about special juries and the malpractice mess: If the Constitution already allows the health courts you apparently seem to support, then why did you take the time to point out that the Constitution can be amended? Doesn't seem relevant - unless the Consitution needs to be amended to allow special health courts.

[JBingham]

X-posted from
http://www.insurancecoverageblog.com/archives/first-party-insurance-sen-lott-considers-katrina-settlement-with-state-farm.html

I think the question on everyone's mind is...

Does Justinian Lane feel that a Republican like Trent Lott is, like other plaintiffs fighting big insurance, entitled to a presumption of heroism? Or does he think Lott's lawsuit will be easily handled thanks to the great mechanisms we have for avoiding meritless lawsuits?