Tort reform is a scam that punishes people to protect profits.
To most tort "reformers" Judge Roy Pearson's lawsuit was upsetting. But the "reformers" were truly outraged by something else: The fact that the AAJy condemned the lawsuit and came to the defense of the defendants. Unfortunately for the "reform" lobby, there were no trial lawyers to demonize in this case. So since Ted can't blame trial lawyers for this lawsuit, he does the next best thing: He plays the race card and accuses trial lawyers of opposing Pearson's lawsuit simply because Pearson is black. (Ted also describes Pearson as being poor, but since Pearson earns a bit over $100k per year, that claim fails.) We're excited to see Franklin join the world of reformers and recognize that many more lawsuits are frivolous than what Public Citizen recognizes. We encourage her to read the data and arguments of those she mistakenly claims to oppose, and to scrutinize those she mistakenly thinks are her allies a bit more closely. Why is it alright for wealthy white trial lawyers to extort billions from big business using the same ad terrorem tactics (and even the same consumer-protection laws!) as a poor African-American pro se did to extort $12,000 from a small business? We encourage Franklin to examine the Association of Trial Lawyers of America's racial double-standard. Source: Overlawyered: The Litigation Lobby's "frivolous" bait-and-switch: the Judge Roy Pearson pants-suit If Ted Frank is truly offended by racism, perhaps he should take a closer look at his employer, the American Enterprise Institute for awarding fellowships to Dinesh D'Souza and Charles Murray. In addition to blaming liberals for 9/11, D'Souza has also gained a reputation for being a racist for such unique writings as: The American slave was treated like property, which is to say, pretty well. [Justinian: Wow.] If America as a nation owes blacks as a group reparations for slavery, what do blacks as a group owe America for the abolition of slavery? [S]egregation was designed "...to assure that [Blacks], like the handicapped, would be...permitted to perform to the capacity of their arrested development. Sources: Dinesh D'Souza - SourceWatch, Dinesh D'Souza D'Souza is no longer with AEI, but Charles Murray is. He gained a great deal of notoriety in the mid 1990's when he wrote The Bell Curve, a book that theorized (among other things) blacks aren't as smart as whites, and it is their intellectual inferiority that prevents blacks from succeeding in America. Murray based this conclusion based partially upon "studies" performed by groups not generally renowned for their scholarship: -
Charles Lane discovered that 17 researchers cited in the book's bibliography were contributors to the racist journal Mankind Quarterly. Murray and Hernstein also relied on at least 13 scholars who had received grants from the Pioneer Fund, established and run by men who were Nazi sympathizers, eugenicists, and advocates of white racial superiority. -
Source: Media Matters - Altercation: You've got to be taught to hate and fear ...
In stark contrast D'Souza and Murray, the AAJ and its members fights for the rights of African Americans. For example, many of the companies that fund the AEI have been successfully sued by members of the AAJ for racial discrimination.  It's more than a little ironic for Ted to accuse trial lawyers of having a racial double standard. He's condemning the AAJ for opposing one African American's frivolous lawsuit, but Ted works tirelessly to deprive the members of the AAJ of the ability to file meritorious discrimination lawsuits on behalf of all African Americans.
Accusing one's opponents of being racist is truly the lowest form of ad hominem attacks. That Ted would resort to such foolishness shows just how foolish he is to criticize the AAJ for opposing Pearson's suit.
A Law.com story today is about the recent order that TorrentSpy must produce data kept in its servers RAM: Magistrate Judge Jacqueline Chooljian's May 29 order requires TorrentSpy to turn over customer data only ephemerally kept in its computers' random access memory, or RAM. It could result in floods of similar requests in other civil cases, according to Ira Rothken, the Novato, Calif.-based attorney for the TorrentSpy site. The Los Angeles magistrate's order also has privacy watchdogs concerned. This is the first case Rothken said he could find where a court considered transient RAM data as something discoverable, he said. Any company currently being sued -- even before any liability has been found -- could end up having to collect and turn over RAM data at great cost, Rothken said. "Lawyers will be flinging around preservation letters, coming up with all kinds of creative ways to tell the other to preserve RAM," he said. "That would cause huge economic implications. If it's not changed, it can create e-discovery chaos." Source: Law.com - RAM Ruling Portends a New E-Discovery Brawl Before I continue, I want to point out that this is not supposed to set a precedent: She also noted that it was not her goal to set a far-reaching precedent with her decision. "The court emphasizes that its ruling," Chooljian said in the documents, "should not be read to require litigants in all cases to preserve and produce electronically stored information that is temporarily stored only in RAM." Source: MPAA accuses TorrentSpy of concealing evidence | Tech news blog - CNET News.com If corporations think that SOX is bad, they should be scared to death that this decision might eventually lead to the requirement to preserve data in RAM. Such preservation would be close to impossible and would be incredibly expensive. First, the data storage requirements would be extraordinary, especially if workstations are included. Second, servers and workstations would take a huge performance hit if every action written into RAM had to be written to a hard drive. I can't think of any way this is practical at all. Scary, scary stuff.
At Point of Law, Walter Olson notes that the NYC city council has banned aluminum baseball bats from NYC high school games on the grounds that they may lead to more injuries and deaths than wooden bats. Olson preemptively rebuts a common argument used to defend such bans: Don't miss Julian Sanchez's concise account ("The Nanny Two-Step") of the dangers to liberty in accepting the argument that runs roughly, "We pay through taxes when someone gets injured, why shouldn't we regulate the risks people take in sports?" Source: PointofLaw.com | PointOfLaw Forum: Aluminum bats and NYC paternalism Sanchez' post and Walter's citation of it is inappropriate in this context. Sanchez' suggests that perhaps we shouldn't force taxpayers to pay for such programs as Medicaid, thus obviating the need to regulate risky behavior on financial grounds. But here's the big point Olson and Sanchez seem to miss: High school sports are paid for by taxpayers. The NYC council has no right to tell citizens what bats they may purchase with private funds to use on private property. But it has every right to regulate how public funds can be spent to subsidize high school baseball - especially if taxpayers will be liable for injuries sustained during the ball games. It's worth debating whether metal bats are more dangerous than wooden bats, but it's unreasonable to deny the city council the right to regulate a sport that taxpayers pay for. Conservatives often complain about so-called entitlement programs such as Medicare/Medicaid, etc. and suggest that society would be better off if those programs were curtailed or eliminated. The same argument can be used against high school baseball: If we're not going to pay for injuries caused when kids play baseball, why should we pay for kids to play baseball?
I wasn't surprised that an attorney who writes for "The Conservative Voice" would praise Bush's recent Executive Order that bars Federal agencies from using contingency fee contracts. I was surprised that such an attorney would have no idea how contingency fees work. The media, relatively speaking, has all but ignored the EO, the excised text of which follows. How few people, otherwise reasonably informed, knew that the Federal Government sometimes retained attorneys to litigate upon a contingency-fee basis! Many States, of course, do likewise. The fees so earned by and large are minimal compared to the millions and multi-millions of dollars collected by the more high-flying “trial lawyers.” However, they are fees paid by taxpayers. Source: “Hail to the Chief,” for Saving Taxpayers from Payment of Contingency Fees by Marion Edwyn Harrison Under a contingency fee agreement, the attorneys are only compensated if they obtain a monetary recovery. Their fee comes from that recovery, not the pocket of the taxpayers. Because a contingency fee agreement is the epitome of "pay for performance," they tend to motivate attorneys to zealously and aggressively work to obtain a recovery for their client. In fact, that's the reason this EO was signed - because government attorneys and their contracted attorneys are supposed to remain impartial, and not be zealous or aggressive. For better or worse, taxpayers will now be forced to pay high hourly rates to outside counsel, and pay them regardless of how effective the attorney is. Now, rather than having an incentive to quickly recover a lot of money for the taxpayers, outside counsel will have an incentive to make cases unnecessarily complicated and to prolong them as much as possible to accrue as many billable hours as possible, all at the taxpayer's expense.
It is with a heavy heart and a pint of hard cider that I write this letter to you. Let me preface this letter by telling you that Office Space and Idiocracy are two of my favorite movies. I consider Idiocracy to be the most accurate "post apocalyptic future" movie ever made. I bought the Office Space kit just for the "Is this good for the company?" banner. And I date the decline of American society at the exact moment Beavis and Butthead went of the air. However, after watching tonight's King of the Hill episode, I would like to kick you in the shins. I speak of the season finale in which Lucky and "The King of Torts" file a series of frivolous lawsuits, and in which Hank Hill performs a soliloquy on the evils of lawyers and litigation in general. Besides being a wildly inaccurate depiction of the U.S. civil justice system, portions of the dialogue in this episode could have been written by a PR flak for one of the many corporate front groups that ceaselessly attack our courts to benefit their corporate masters. While I'm the first to admit there are a few scumbag personal injury attorneys who lack morals, ethics, or decency, they do not represent the average attorney anymore than the handful of priests who molest children represent the average priest. First, I would like to explain the legal problems with Lucky's lawsuit against Hank Hill. A brief recap for those who missed the episode: Luanne's fiancee Lucky is in need of work. Hank Hill suggests to Dale that he should hire Lucky for his extermination business. Dale does so, and invites Lucky into his home's basement/office. The two of them engage in some horseplay (instigated by Lucky), and Lucky falls and injures himself. Lucky retains his attorney, who proceeds to file a lawsuit against Dale. As it turns out, Dale isn't insured, so the quest for "deep pockets" begins. They first consider the manufacturer of Dale's pesticides, but he brews his own. Then they consider suing the homebuilder, but Dale built the staircase that Lucky fell on. Finally, they settle on Hank Hill for recommending Lucky to Dale. Or more to the point, they settle on Strickland Propane, Hank's employer. Under the theory of "respondent superior", Lucky claims Hank's employer is liable for Hank's recommendation and the injury that Lucky sustained. Under respondent (or respondeat) superior, an employer is liable for the acts of its employees performed in the course and scope of the employee's job. Since Hank's recommendation was not in the course and scope of Hank's employment, and since the recommendation occurred on Hank's property, Strickland Propane would be in no way liable for Hank's recommendation. And even more importantly, Hank wouldn't be liable, either anymore than Monster.com would be liable if Dale hired Lucky after reviewing his resume online. If you're looking for additional stories involving lawsuits for the show, here are two that are much more realistic: - After years of protracted use, Dale develops cancer from the chemicals he uses to make pesticide. He has difficulty finding a lawyer to take his case because he's used chemicals from three different manufacturers over the years and determining liability will be difficult. He eventually finds an attorney who sues the three different manufacturers and the chemical distributor. All four defendants deny all liability and alternate between blaming each other and blaming Dale. The defendants mount a multi-million dollar defense and fight tooth and nail not to release internal documents, citing such reasons as "trade secrets." Dale's lawyer, a sole practitioner, is overwhelmed and persuades Dale to settle for a fraction of the case's true value. Dale dies a slow, painful death, and the majority of his settlement goes to pay medical bills. Once Dale is dead, his notoriously unfaithful wife could become a stripper with a coke habit. Obviously, there's lots of hilarity there.
- The notoriously cheap Mr. Strickland decides to save money by cutting corners in the safety department. After years of neglect, one of the main propane tanks explodes, paralyzing Hank from the neck down. Because the accident happened on the job, Hank can't bring a personal injury lawsuit. And thanks to the "reform" to the Texas workers' compensation system, Hank is forced to accept permanent disability benefits that are far less than his salary. After blowing through Bobby's college fund trying to make ends meet, the Hills lose their house and are forced to move into an apartment. The rest of the show could depict the difficulties of a family of three trying to live off of Peggy's meager salary as a substitute teacher with a poor grasp of Spanish.
I doubt you'll use either of these stories because they're so miserably depressing. Unfortunately, stories far worse than these occur time and time again because so many people want to "reform" the justice system instead of reforming the systems that let these injuries occur in the first place. Mr. Judge, I can forgive you for your false depiction of the justice system as I'm sure it was unintentional. What I'm not sure if I can forgive you for is the inevitable fallout: The blogosphere will be aflame with poorly-written rants about your show proves we need tort reform. Some conservative nutjob group (CFIF is my bet) will cite the show as another example of lawyers run amok, and an already cynical public will find yet another reason to distrust lawyers.
David Nieporent at Overlawyered had an update on Roy Pearson's bogus pants lawsuit. As with many of his posts, it's rife with demagoguery and factual omissions. Contrary to what we had speculated, it appears that Pants Judge Roy Pearson still has a job and may continue to do so. According to an unnamed D.C. official, and exemplifying the attitude with which the tort reform movement is fighting, "I don't think it's appropriate not to reappoint someone just because they file a lawsuit. You can't retaliate against someone for exercising their constitutional, First Amendment right to file a lawsuit to vindicate their rights." (No, but you can retaliate against someone for filing a frivolous lawsuit.) Meanwhile, as a face-saving publicity stunt, the American Trial Lawyers Association filed an ethics complaint against Pearson; really, Pearson isn't doing anything that ATLA doesn't endorse in other situations. Source: Overlawyered: Updates - May 17 First, I agree wholeheartedly that this lawsuit is frivolous. So does David. But neither he nor I can discipline Roy Pearson. Until a judge does make the judicial determination that this lawsuit is frivolous, vexatious, or otherwise inappropriate, Pearson is nothing more than a litigant in a civil lawsuit and there is no legitimate reason to terminate him for this lawsuit. Terminating him now sets a dangerous precedent; should your bosses be able to terminate you for firing any lawsuit they determine to be frivolous? No. Pearson should keep his job unless and until the judge in his case makes the determination that the case is frivolous, vexatious, malicious, or otherwise improper. Once that determination is made, however, Pearson should be out on his ass. Second, Nieporent's attack on the ATLA is without factual basis, and is nothing more than another of Nieporent's knee-jerk reactions against trial lawyers. This wasn't a face-saving stunt in any way, if for no other reason than the ATLA was not affiliated with or otherwise associated with Pearson or this lawsuit. One of the reasons this case shocks us is because Pearson is a judge. If any group of people need to "save face" then, it's not trial lawyers, but judges. Moreover, ATLA members are giving money to the Chungs. I wonder if Nieporent has written them a check yet.
The author of the Pacific Research Institute's bogus study on the tort system responds to criticism in the following letter to the editor: Our calculations are based on the best scholarly studies by the nation's top economists and legal scholars -- in fact, 34 studies written by 52 scholars. If one compares direct U.S. tort costs to the tort costs of other industrialized nations, for example, one realizes that the U.S. tort system is the most expensive in the industrialized world. At 2.2 percent of GDP, direct costs are bigger than our counterparts in Germany, France, Japan, and the United Kingdom. Source: montgomeryadvertiser.com :: Director of study defends work OK, so we spend 2.2 percent of our GDP on the tort system. (Maybe.) So what? How much should we spend? 2 percent? 1.5 percent? .05 percent? By stating the number and implying that it is too high, the "reformers" can always claim there's something wrong with the tort system. What they won't do, and indeed what they can't do is state what percentage of the GDP the tort system should be, and then state what "reform" measures will lower the tort costs to that percentage.
Below, David Nieporent bemoans the creation of a new cause of action: Just what we need: more causes of action. If you've ever wondered why this country is overlawyered -- besides greed and lack of personal responsibility, I mean -- you might want to look to our law schools, where law professors with too much time on their hands spend some of it thinking of new ideas for increasing litigation. The latest example, from Fortune.com's The Browser: The mere act of forwarding an email or posting an exchange to a website is grounds for legal action, according to University of Arkansas law professor Ned Snow. In a paper to be published in the Kansas Law Review this summer, Snow contends that one of the most common acts of the digital age is a violation of privacy and warns that our courts are running headlong into this issue. ...And if there's big money to be made somewhere along the way, well, I guess that's just the price we all have to pay. Source: Overlawyered: Forward an email, get sued? David apparently would prefer that as society and technology evolves, the law stands still. Why, if the law never evolved, we wouldn't have such "problems" as minority rights, voter rights laws, school integration, Miranda rights, the ability to sue the government if a police officer brutalizes you, etc. While David might prefer a justice system from the 19th century in which injured persons had limited rights of redress, I prefer a justice system that evolves and adapts to new wrongs. I doubt David would complain about the evolution of law that allows pharmaceutical companies to protect their research into biotechnology, or that allows companies like Microsoft to prevent their competitors from stealing their source code. As technology marches on, so too must the law. It must evolve to protect individuals, corporations, and society. And if there's "big money" to be made by enforcing the rights of citizens and corporations, well, that's not a very big price for America to have the most robust justice system in the world. David, if you want to rail against greed and the "overlawyered" nature of the country, why don't you do all your work pro bono, or better yet, quit practicing law. I just love how defense lawyers, who charge hundreds of dollars per hour, complain about greedy lawyers and those injured plaintiffs who dare to demand their medical bills be paid by the entity that injured them. Cross-posted to TortDeform
Jim Copland is OK in my book because he's also a Casino Royale fan. But I have to take issue with his recent post at Point of Law: "And with increased threats of criminal sanctions for corporate managers, directors, and auditors, the leaders of publicly traded companies in America have had to devote far more time to accounting and compliance issues than to growing their businesses." Source: PointofLaw.com | PointOfLaw Columns As opposed to allowing accountants to cook the books and ignoring the rules like Enron, for example. And SOX is purportedly a failure. The point of Copland's post is that the legal and regulatory climate in the U.S. is driving IPO's overseas. Perhaps the executives of these companies will follow in the footsteps of people like Ken Lay and run their companies into the ground and devastate the economies of the countries that hosted their IPO's. Honestly, if an executive is so afraid of having so sign off on the authenticity of the company's financial statements.... what does that tell you about the executive's ethics?
Walter Olson quotes Charity Doc's post about problems with the health system. Surprisingly, Charity Doc considers the following to be defensive medicine. spread[ing] the liability by consulting other doctors and specialists to get everyone under the umbrella... Source: PointofLaw.com | PointOfLaw Forum: Does med-mal risk, like misery, love company? Obviously, I disagree that consulting with one's peers is defensive medicine, except perhaps in the most obvious cases. But the rest of Charity Doc's complaints are worth reading. He assesses the numerous problems with our medical system. Might I suggest we work on the other issues he brings up before we try and take away patient rights? "...When ~47 millions of Americans do not have health insurance, we have a big problem. When a person in America has to make a decision between food on the table or pills in a bottle to take for his/her medical problems, it is an national disgrace... When hospitals pass on the costs of healthcare to the public by marking everything up by 1000%, we all have to pay painfully... When hospital and HMO administrators without any clinical experience or medical background can dictate what tests and studies physicians can or cannot order, the ship is being run by idiots and is doom to sink... [If the HMO's are allowing the doctor s to get second opinions - I mean practice defensive medicine - what does that say? - Justinian]" Source: Fingers And Tubes In Every Orifice: Taking a break I suggest checking out the rest of Charity Doc's post as this is just a sampling.
It's surprising that a man as learned as Professor Michael Krauss would commit the post hoc ergo propter hoc fallacy, but he does so with his criticism of a punitive damages award against Ford. "Ford Motor Co. had been found liable for $10.6 million in compensatory damages (of which $8.5 million was for "pain and suffering") to a paralyzed driver... But Ford was spared a possibly huge punitive damages verdict because its lawyer was allowed to tell jurors about the carmaker's dire financial straits and mass layoffs. The jury awarded only $42,500 in punitives despite the large compensatories award. Ford's lawyers were allowed, over plaintiff's objections, to enter evidence about the automaker's recent mass layoffs and losses. Ford reported a 2006 full-year net loss of $12.7 billion, and in January the automaker announced plans to eliminate 25,000 to 30,000 jobs in North America and close 14 plants by 2012." Source: PointofLaw.com | PointOfLaw Forum: NJ Verdict Demonstrates Absurdity of Punitives Professor Krauss wrongly assumes that because jurors were told about Ford's financial problems, they awarded only $42,500 in punitive damages to the plaintiff. Neither Krauss nor the article he cites provides any evidence that jurors based the size of the punitive damages award upon Ford's financial woes. Isn't it entirely possible that the jurors in this case decided that Ford's misconduct wasn't severe enough to warrant an award of more than $42,500? One may share Professor Krauss' opinion that punitive damages are "absurd," but one shouldn't base that opinion upon Krauss' fallacious reasoning.
Overlawyered implies that the legal system is partially to blame for the Virginia Tech massacre. How is it to blame? Apparently because in America, you can't get committed or arrested for writing violent plays: "One play attributed to him, called "Richard McBeef," describes a 13-year-old boy who accuses his stepfather of pedophilia, and ends with the boy's death. In another, called "Mr. Brownstone," three high-school students face an abusive teacher. "I wanna kill him," says one character. "I wanna watch him bleed like the way he made us kids bleed," says another." Source: ABC News: Killer's Note: 'You Caused Me to Do This' "Richard McBeef" sounds similar to Happiness, and Mr. Brownstone sounds similar to Sleepers. I can't be certain, of course, but I bet neither of the writers of those films were investigated.Look - people write sick, disgusting things every day. It's probably not an exaggeration to say at least one million authors have written stories or plays as or more violent than the two in question. But so far this year, only one of those authors has gone on a shooting spree. It's neither reasonable nor practical to expect law enforcement to get involved any time someone writes a disturbing story or play. The police are therefore not at fault for failing to investigate Cho for writing violent plays. However, they may be at fault for failing to investigate Cho on other grounds: "Police documents today showed authorities suspected Cho may have been the source of two bomb threats last week targeting Virginia Tech engineering buildings." Source: ABC News: Killer's Note: 'You Caused Me to Do This' Cho had to jump through a couple of small legal hoops to buy firearms because he's a resident alien; police investigating a guy for making bomb threats don't take notice of the fact the suspect just bought two guns within the last 30 days? If that doesn't say "red flag," I don't know what does. Especially since the police had already been contacted about the disturbing plays he had written. Bu on the bright side, not even three hours after his "Quote of the day" post, Olson rightfully criticized attorney and plague-on-society Jack Thompson for blaming violent video games for the shooting. Jack - you're a nutjob. Stop. Turn in your bar card, form a cult, and move to Guyana.
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It's more than a little ironic for Ted to accuse trial lawyers of having a racial double standard. He's condemning the AAJ for opposing one African American's frivolous lawsuit, but Ted works tirelessly to deprive the members of the AAJ of the ability to file meritorious discrimination lawsuits on behalf of all African Americans.
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