Justinian Lane - Commentary on law, politics, and tort "reform."

A call to arms for trial lawyers who can do more than sit on their asses and bitch.

A little more than six years ago, I began blogging about the civil justice system.  When I started blogging, I was a community college student working as a paralegal for a small personal injury law firm.  I had no degree, little experience with the civil justice system, and practically no credibility whatsoever among trial lawyers.  Over the course of a couple of years, I managed to gain a little bit of credibility; I was even published in TRIAL Magazine, the official magazine of the largest association for trial lawyers.  I also got invited to join Tortdeform.com, a leading blog in the fight to protect the civil justice system.  I’ve spent thousands of hours and thousands of dollars to educate the public about the importance of a robust tort system.  I’ve lectured at school, printed and distributed newsletters, and been the target of numerous personal attacks from the millionaires behind the tort “reform” movement.  (Note that I don’t say “victim.”  I’m a proud defender of the court system, not a victim.)

As I write this post, I have one week left of classes in my second-to-last semester as a law student.  In just a few short months, I’m going to become that which corporate sycophants fear the most: a trial lawyer, complete with subpoena power and the ability to hold even the largest corporation accountable for injuries its products cause.  To me, the best part of becoming a trial lawyer will be having the salary to hire a little bit of help in my blogging efforts.  A better graphic design, some more pay-per-click ads for “tort reform” and the ability to buy those bullshit press releases that everyone uses to artificially inflate their incoming link count.  I’m very excited to have new resources to fight this battle with.  But I’m also saddened that I’m forced to spend my time and my dime fighting this battle while so many trial lawyers sit with their thumbs up their asses, content to let me and a few other bloggers act as their foot soldiers.

Trial lawyers, as a collective group, have billions of dollars at their disposal, and the private phone numbers of every (Democratic) Senator on speed dial.  They have money, they have power, and they have the absolute worst public image of any group this side of child molesters.  For God’s sake, Republican members of the U.S. House of Representatives in 2009 shout “Trial Lawyer!” in the same way they would have shouted “Communist!” in 1959.  It’s an epithet, a dirty phrase.  To many Americans (and most Republicans), being a trial lawyer is something to be ashamed of.  Well, I’m God-damned proud to be a future trial lawyer.  To me, it’s a noble calling.  What I am ashamed of is that so many of my brethren are cheap, lazy bastards who won’t lift a finger to expose tort reform for the bullshit corporate scam that it is.

How much money do mass tort referral mills spend every year on their endless commercials?  You know the ones I’m talking about: “Have you or a loved one been injured by _____?  If so, call us and we’ll sign you up and refer your case out to a lawyer who actually practices law.  Then, we’ll take our 1/3rd referral fee and use it to run even more obnoxious commercials!”  (OK, they don’t say that, but it’s what they do.)  I have no respect for the referral mill model.  That would change (a little, anyway) if they used their vast funds in the same strategic way that the reform movement does.

Look at what the tort reform movement has done.  They’ve bought bullshit think tanks staffed by corporate fluffers that turn out propaganda that would turn Goebbels green with envy.  Every year, they turn out slick, glossy, and effective books about the evils that trial lawyers wreak on the economy.  We, on the other hand, have a couple of impotent lobbying groups that turn out obviously-biased coloring books which do nothing to sway public opinion to our side.  How much money – how God damned much money – does the Chamber of Commerce spend every year putting together propaganda that is full of lies and misstatements to foist onto the general public?  And how much do trial lawyers spend?  Not only less than the Chamber, but I’d bet less than the top ten percent of the trial bar blows at strip clubs every year.  If the best trial lawyers in the country were half as interested in stopping tort reform as they were at staring at tits, well, it’d be a whole new ball game.

How hard would it be to hire a couple of Ph.D’s to write some reports that:

• Explain how the civil justice system REALLY works
• Equate defensive medicine with insurance fraud
• Expose the scorched Earth tactics of the defense bar as the true cause of the cost of litigation
• Publish some of the damning evidence that justified the huge punitive damage awards the public thinks aren’t justified
• Show how tort reform shifts economic costs onto taxpayers

Seriously, what would it take, a half a million a year to start a think tank to publish reports on a quarterly basis?  Name it something ambiguous like “The Economic Growth Consortium,” or “Americans for Personal Responsibility,” or copy Knight Rider and name it “The Foundation for Law and Government.”  Just come up with a name that doesn’t scream trial lawyer.  Put a couple of economists on the payroll, hire them a secretary or two, and then take a graphics arts student as an intern to format their reports.  Refuse to reveal the names of the donors, just like the big boys at the Chamber of Commerce.  Then, start releasing scholarly reports that counter the lies that the Chamber and the ATRA spin.  Maybe even go on the attack and author a report like, “Common-sense reforms necessary for fairness to return to the California civil justice system,” and then use that report to argue for the abolition of MICRA.  Or “Judicial Activists Threaten 50 Years of Stability” and use that to attack Iqbal. 

Scholarly reports; ha!  I can’t remember the last scholarly report I’ve read the pushed a trial lawyer point of view.  I think trial lawyers have ceded scholarship to the defense bar.  How else to explain why they get bounced so often in Daubert hearings, why so many of them delegate “law work” to the least qualified lawyers in the office, and why there are so few writing contests for law students in comparison with the defense bar.  Come to think of it, some of the most competent plaintiffs’ attorneys I know used to be defense attorneys.  In fact, the highest compliment I’ve yet been paid was by a former supervisor (himself a Biglaw refugee) when he told me that I write like a defense lawyer.  By that, he meant that I bother to proofread, check my cites, and rely on law instead of emotion to carry the day.

I know I’m not alone in this frustration.  I know there are other trial lawyers and future trial lawyers who want to organize and start fighting the “reform” movement in an effective, and professional way.  If you’re one of them, email me at justinian at justinian dot us.  If you’re willing to contribute time, money, or other resources, I want to hear from you.  Our first project will be a well-written and well-designed “Civil Justice 101” book to explain how the tort system works to the general public.  It will explain that SCOTUS has already capped punitive damages, how Daubert and Frye keep bad science out of the courtroom, and how our regulatory agencies are both too understaffed and too underfunded to adequately protect the public.  We’ll put it together and distribute it to the media and to politicians.  Let’s not let ourselves be defined by the Chamber of Commerce, and let’s quit waiting for the old dogs to step in and fight this fight for us.  Let’s get this book done by Feburary 1st, and let’s use it to help make sure the tort system doesn’t get torpedoed in the battle for healthcare.

If you’re a trial lawyer, consider this your call to arms.  You can either sit there on your ass and bitch impotently about tort reform, or you can work with me to put a stop to it.  Your choice.

Joanne Doroshow Describes Tort Reform

This woman is my hero.  I’d say she’s my heroine, but then people would probably accuse me of being a drug addict.

Tort "reform" is a doozy of a misnomer. There is certainly nothing positive or beneficial about it. Tort reform laws, which now exist it nearly every state (although you'd never guess that after listening to those complaining how much we need it), make it more difficult for average people who have been injured, assaulted, or harmed in any way, to sue those responsible. The tort reform movement was created and funded by insurance companies, manufacturers of dangerous products, the tobacco industry, the medical profession, and other industries and professions. This movement is backed by enormous sums of money funneled primarily into conservative "think-tanks," public relations, polling and lobbying firms. Tort reforms always hurt patients, consumers and average people. They are also extremely dangerous for the rest of us.

Even the Congressional Budget Office, who guessed there could be "savings" from enacting national menu of brutal "tort reforms," cites studies showing that if enacted, thousands more would die every year. Some savings. What's more, chances are you already live in a state with brutal "tort reform" laws on the books. Ask the Olsen family from California or the Gourleys from Nebraska, both with severely disabled teenage boys who traveled to Washington D.C. last month to plead that Congress not do to the entire country what lawmakers already did to them.

Steven Olsen is blind and brain damaged because, as a jury ruled, he was a victim of medical negligence when he was two-years-old. He fell on a stick in the woods while hiking. Under the family's HMO plan, the hospital pumped Steven up with steroids and sent him away with a brain tumor, although his parents had asked for a CAT scan because they knew Steven was not well. (So much for "defensive medicine.") Steven Olsen came back to the hospital comatose. Had he received the $800 CAT scan, which would have detected a growing brain mass, he would have his sight and be healthy today.

Source: Joanne Doroshow: Medical Malpractice Tort Reform - We Are Already Suffering and Don't Need More

If Loser Pays is So Great, Why Not Have it In Criminal Cases?

One of the current suggestions to fix our healthcare system is to enact a system known as “loser pays,” in which the loser of a lawsuit is forced to pay the legal costs of the winner.  Tort reform advocates suggest that this change would fix many problems with our civil justice system.  To them I ask why not apply loser pays to criminal cases as well?

If you’re sued in a civil lawsuit, say for a car accident, your insurance company will cover your legal costs.  They will hire a lawyer known to be good, pay the lawyer well enough that he or she will have enough time to dedicate to your case, and will cover all or some of any judgment against you.  That’s why we pay insurance premiums.  Under “loser pays,” if you’re sued and the plaintiff loses, the money will reimburse the insurance company.

Compare that to a criminal case.  If you’re prosecuted for a crime you didn’t commit, you’re going to have to hire an attorney out of your own pocket.  A decent attorney will likely charge $5,000 or more for a jury trial in a run-of-the-mill criminal case.  If it’s a serious felony, especially a murder case, you can probably count on $25,000 or more in attorney fees.  And if you’re charged in a big financial fraud case, you might have to shell out six figures in attorney fees.  It’s not uncommon for people to have to get a second mortgage to hire an attorney, or to even have to sell their house and car.

Now, if that person is found "not guilty” then why shouldn’t the government have to reimburse those attorney fees? 

Three words answer that question: Orenthal James Simpson.

I don’t think it’s any secret that many (perhaps even most) Americans think the criminal jury in his murder case got it wrong.  Now, we all know that O.J. spent millions of dollars hiring the best lawyers money could buy.  How do you think taxpayers would have reacted if they had to reimburse The Juice for all his legal fees?

It’s easy to imagine the effect on criminal prosecutions that “loser pays” would have: District Attorneys would bring fewer cases in total, especially against wealthy defendants that can mount a seven figure defense.  District Attorneys would also be more likely to plea bargain serious cases on the theory that it’s better to take a light sentence than risk losing and have to pay the defendant’s attorney fees.

Do you want to live in a world in which the wealth of a defendant dictates the likelihood of that person being criminally prosecuted?

That’s the exact same thing that would happen if we enact “loser pays” in the civil justice system.  Wealthy defendants (or those with large insurance policies) would rarely be sued.  When they are, plaintiffs would likely accept small settlements in order to avoid the risk of having to pay the defendant's attorney fees.  If you thought you deserved $100,000 from a pharmaceutical company, would you sue them if you knew that if you lost you might owe them $2 million dollars in legal fees?

Loser pays isn’t about being fair to winners or losers in a civil lawsuit.  It’s about rigging the system so individual plaintiffs are afraid to sue corporate defendants.

Chamber of Commerce Seeks Jury Trial

That’s a funny (read: monumentally hypocritical) thing to do for a group that spends millions of dollars a year attacking jury trials.

The Chamber announced Monday that it had filed suit against the gonzo Yes Men gang. It tries to cast the suit as a garden-variety action to protect the organization’s intellectual property — specifically, two registered trademarks. The organization’s chief in-house lawyer called the suit “a customary response by any organization faced with this type of misconduct by the defendants.”

But that’s simply not the case. Far from a narrowly cast trademark protection lawsuit, this is blunderbuss, seven-count complaint filed by a major Washington, D.C., firm in U.S. District Court, with the Chamber asking for an injunction (including removal of YouTube videos), a jury trial, damages, attorneys’ fees and “such other relief as may be appropriate.”

Source: Lawsuit obtuse | The Platform | STLtoday

If I Sued 30,000 Corporations, Would I Be a Vexatious Litigant?

Somehow, I bet the court would answer that question “yes” even though it didn’t find the RIAA to be a vexatious litigant.

Levy also ruled that the RIAA, which has sued 30,000 individuals, was not a vexatious litigant, shooting down Beckerman’s counter-complaint against his courtroom opponents. “Plaintiffs have doggedly pursued their copyright infringement claim, but I find no evidence of undue vexatiousness or ill motive on their part,” Levy wrote.

Source: Judge Refuses to Punish Lawyer for Anti-RIAA Blogging | Threat Level | Wired.com

The tort “reform” movement’s tacit acceptance of the RIAA’s litigiousness shows that (a) the movement is about protecting corporations and not “reforming” anything, and (b) there’s nothing wrong with suing those who wrong you.

Technorati Tags: RIAA,vexatious litigants,tort reform

Bob Casey Understands Damage Caps

He certainly understands that $250,000 caps are a tasteless joke at the expense of the catastrophically injured.

“I don’t think the way to go is to limit the rights of Americans who are injured by negligent or intentional conduct,” Pennsylvania Sen. Bob Casey who is a member of the Senate Health, Education, Labor and Pensions Committee said Sunday on CNN’s State of the Union.

“A $250,000 cap on damages, in my humble opinion, is insulting to our system of justice,” Casey also told CNN Chief National Correspondent John King, “That is not justice as we have come to understand it.”

Source: CNN Political Ticker: All politics, all the time Blog Archive - Casey: $250K cap on malpractice damages ‘insulting’ « - Blogs from CNN.com

If you lost your legs due to the negligence of another, would you feel that $250k is fair compensation?

Technorati Tags: tort reform,damage caps,Bob Casey

How much will tort reform lower medical costs? And why is the GOP “Obsessed” with tort reform?

Well, if we completely eliminated all malpractice lawsuits, our medical costs would drop by a little less than 2%.  Yeah, I can see why we’re focusing so much on it:

But a 2006 Congressional Budget Office report finds small connection between a 20 percent lowered premium and the actual delivery of lower health-care costs.

The report was the result of CBO's analysis of the Help Efficient, Accessible, Low-Cost, Timely Healthcare (HEALTH) Act of 2003, designed to lower premiums for medical malpractice insurance nationwide by an average of 25 percent to 30 percent from the levels likely to occur under current federal law. The CBO found that tort limits such as caps on non-economic damages, punitive damages and changes to rules governing the treatment of collateral sources of damages did reduce malpractice insurance premiums, but doctors apparently are in no position to pass many of those savings on to consumers.

"A reduction of 25 percent to 30 percent in medical malpractice premiums would not, by itself, have a significant impact on total health care costs," the report states.

"Malpractice costs amounted to an estimated $24 billion in 2002, less than 2 percent of overall health care spending. Thus, even a reduction of that magnitude in malpractice costs would lower health care costs by only about 0.4 percent to 0.5 percent, and the likely effect on health insurance premiums would be comparably small."

Some Mississippi patients certainly don't seem to recognize the improvement: "Are they really trying to say that my medical costs have gone down?" asked Jackson resident Amanda Starnes, a diabetes victim profiled in a recent Jackson Free Press story. "I guess the $10,000 in debt I've accrued could have been $10,002, right? Somehow, I don't see the difference."

Source: Jackson Free Press: Jackson, Mississippi - Noise - Barbour - Politics - State - The GOP’s Obsession with Tort Reform

Let me connect the dots and explain why the GOP is “obsessed” with tort reform.

One of the wealthiest groups of Democrats are trial lawyers.  Tort reform will reduce the amount of money trial lawyers can give to Democratic candidates.  Doctors tend to be Republicans, and they LOOOOOOVE tort reform.  Passing it means doctors will give more money to Republicans who passed it.  So, for the GOP, tort reform means more campaign money for them, and less campaign money for Democrats.  That, in turn, means more Republicans winning elections.  And that, dear readers, is why the GOP is obsessed with tort reform.

Chamber of Hypocrites, er, Commerce, Threatens Lawsuit

Ahhh, more proof that the corporate whores who work at the Chamber of Commerce don’t actually buy into the “lawsuits are evil” rhetoric:

The nation's largest business group is asking U.S. EPA to hold a public debate on climate change science -- or face litigation -- as the agency prepares to regulate greenhouse gas emissions under the Clean Air Act.

Source: Chamber Threatens Lawsuit if EPA Rejects Climate Science 'Trial' - NYTimes.com

This is no surprise to me.  Businesses routinely take advantage of our robust civil justice system.  But they and their corporate front groups spend millions of dollars to prevent injured citizens from using that same robust civil justice system.

Remember the Chamber’s eagerness to turn to the courts the next time they argue that we need to restrict the ability of others to do the same.

Technorati Tags: Chamber of Commerce,Climate Change,lawsuit hypocrites

Traffic Through The Roof At My Tort Reform Blog

Have you seen my site www.whatistortreform.com?  Well, if you haven't, it appears you're the only one.  Traffic spiked today to five times the normal volume.  Must be all this talk about health care reform that's getting people to search for "tort reform."

I've also added statutes of limitation for all 50 states, plus Guam, Puerto Rico, and D.C.  If you find those useful at all, please consider linking to the site.  I'm hoping to be the number 1 result in Google and Bing for tort reform and I'm not quite there yet.  Some more incoming links will likely help...

Statutes of Limitation for all 50 States Posted at www.whatistortreform.com

I’ve posted the following information for all 50 states (plus U.S. territories) at my blog, www.whatistortreform.com:

• The statute of limitations for wrongful death claims;
• Who has standing to file a wrongful death claim;
• Whether the discovery rule applies to wrongful death claims;
• The SOL for personal injury claims;
• Whether the discovery rule applies for personal injury claims.

More importantly, I’ve included a cite to the relevant statute or case so you can verify for yourself what the statutes are.

If you find it useful, nothing says “Thanks!” quite like linking to www.whatistortreform.com.

Technorati Tags: statutes of limitation,statute of limitations,tort reform,discovery rule,wrongful death,personal injury