Justinian Lane: reform supporter?

by Ted Frank on September 17, 2006

Until now, we’ve ignored a small left-wing think-tank’s admitted attempt to create a Bizarro-world version of Overlawyered. The writers are a recent college graduate and a recent law-school graduate who don’t appear to have actually read anything reformers write in support of reform. (For example, one post links to Overlawyered when defending the infamous McDonald’s coffee lawsuit, but fails to address any of Overlawyered’s arguments for why the McDonald’s coffee case is meritless, and simply repeats ATLA propaganda that Overlawyered refuted.) The blog has consisted mostly of thoughtless regurgitation of trial-lawyer talking points; when original analysis is attempted, it rises to the level of self-parody, such as an analysis of Leonard v. Nationwide (see POL Sep. 7 and links therein) that ignores the language of the insurance policy, the relevant Mississippi precedent, the existing discussion in the blogosphere, and any semblance of public policy rationalization in lieu of a Wikipedia definition to argue that the decision (and the defendant) are racist because some African-American plaintiffs might lose as a result.

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.

{ 20 comments }

1 David Nieporent 09.17.06 at 6:43 pm

As I submitted over on the blog you’re referencing, I was just laughing at the notion that summary judgment is a tool for “quickly and easily” dismissing lawsuits.

Summary judgment is not quick, easy, or (more importantly) cheap. Nobody who has practiced law (as opposed to going to law school and then working for an advocacy group) would think it was.

2 Justinian Lane 09.18.06 at 5:13 am

The Facts Of The Case

Tsk, tsk, tsk. I may be “unfamiliar” with the legal system… but at least I’m familiar enough with it to know that the facts matter.

If you read my example closely, you would have noticed two key facts.

First, that Mr. Smith does not contest the fact he was legally intoxicated.

Second, that in this jurisdiction, a law is on the books that automatically assigns fault in an accident to an intoxicated person, regardless of other circumstances.

Those two facts mean that Mr. Smith cannot prevail as a matter of law, and any fact issue as to the state of the traffic light is irrelevant. As such, he and his lawyer could indeed be ordered to pay attorneys’ fees or sanctions for filing a lawsuit in bad faith. Perhaps next time I’ll use a clearer example, such as a case in which the statute has run.

Perjury

You reference perjury here a couple of times. Perjury is a criminal offense, even if it happens during a civil trial. Therefore, whatever consequences an individual faces for committing perjury depends entirely upon the prosecuting attorney. In 99 out of 100 cases, the perjurer will face no consequences at all. In very rare cases, such as President Clinton’s impeachment, a zealous prosecutor will indeed make an issue out of perjured testimony. Would you pass a law that mandates all instances of perjury be prosecuted to the fullest extent of the law? Or do you believe it’s best to let the prosecuting attorney decide which cases to prosecute? My beliefs about perjury are simple: There are too many violent criminals to fill our jails with liars. However, any attorney who knowingly allows his or her client to commit perjury should be severely sanctioned the first time, and disbarred the second time.

Speaking of perjury, here’s a tough one for you and your “I never saw a tort I didn’t hate” brethren: Not all jurisdictions allow a civil cause of action against a perjuror. Would you support the creation of such a tort in those jurisdictions that don’t?

The Summary Judgment

One reason I’m so confident that the summary judgment is disposing of frivolous lawsuits is the work of Marc Galanter and Stephen Burbank. If you’re unaware, their research (among others) shows that in 2000, three times as many cases were disposed of by summary judgment than made it to trial, by 7.7% to 2.2%. While the percentages vary from district to district, the trend is clear: Fewer and fewer cases make it to trial, while more and more are disposed of by summary judgment. Isn’t that what you want?

Finally, you put words in my mouth when you say I agree that lawsuits you cite are frivolous, and that I think the summary judgment would resolve them. I’m not familiar at all with the facts of either case, and certainly haven’t formed an opinion as to whether summary judgments should have been granted. The minimal coverage you provided of them doesn’t even say whether summary judgments were filed, and if so, upon what grounds!

3 Ted Frank 09.18.06 at 9:41 am

The Facts of the Case

JL writes in defense of his hypothetical: “a law is on the books that automatically assigns fault in an accident to an intoxicated person, regardless of other circumstances.”

That’s not the facts of the case: that’s a fictional law that you’ve invented for your hypothetical. Which state automatically assigns fault to a drunk driver? I’m not aware of any—GM got hit with a huge multi-billion dollar verdict in a case where an accident was caused by a drunk driver. A regular reader of Overlawyered would know that, if anything, the reverse is true. Most states don’t allow evidence introduced that an injured party wasn’t wearing a seat-belt. Cook County lost a case because the court refused to admit evidence that the plaintiff was a drunk driver. Here’s a similar case in Louisiana.

If your argument is that if a different tort reform were passed to automatically assign fault to drunk drivers then there is a possible hypothetical case where that drunk driver would lose a summary judgment motion, that’s hardly an argument against tort reform, since your hypothetical still requires a tort reform to be passed. I note that ATLA and its compatriots has historically opposed such reforms–the Center for Justice and Democracy even criticized a law that sought to hold ammonia thieves responsible for injuries they caused because it provided legal immunity to the farmers who were victims of the thieves.

Perjury

There is an extensive problem with perjury promoted by the plaintiffs’ bar, and it’s sorely underprosecuted. As I note in the cited cases, perjury is frequently rewarded under the status quo.

You severely misrepresent my position when you accuse me of never seeing a tort I liked. I’m not against torts, I’m against inefficient torts that make Americans worse off. What’s your standard?

The Summary Judgment

You prove my point precisely: fewer than 8% of federal cases in six metropolitan districts are disposed of by summary judgment. (You misstate the study when you fail to qualify it to its limited scope.) In certain judicial hellholes, corporate defendants find summary judgment even less available, and the trial lawyers know it.

4 Justinian Lane 09.18.06 at 11:11 am

My Hypothetical

I saw drafts of a bill kicked around that would have automatically assigned fault to any individual in an accident who was intoxicated. I’m unaware of any state in which this is the law, but this was used to merely illustrate the summary judgment process in a way that would be understandable to the layman.

If this or a similar law is on the books anywhere, I wouldn’t characterize it as tort reform. I’d look at it more as civil punishment for the criminal offense of drunk driving. Perhaps some in the trial bar believe that felons should be able to avail themselves of the civil justice system for injuries they sustain during the commission of a felony, but I certainly don’t. Consider it a variation of the old saw “If you can’t do the time, don’t do the crime.”

Perjury goes both ways

I can’t say that I agree with your statement that perjury is rewarded under the status quo, but I do agree it’s sorely underprosecuted. Like you, I have a great respect for our justice system. I think it’s one of the things that makes America great. So it bothers me when someone commits perjury, either in a civil or a criminal case. That said, I do hope you’ll admit that the defense bar has also been guilty of encouraging or permitting perjured testimony, too.

Torts

What’s my standard? I oppose any tort “reform” measure that places corporate efficiency ahead of the public safety.

Statistics

Yes, the study I mentioned was of federal cases. If you know of any study of the frequency of summary judgments in state courts across the land, please forward it to me. I’m sure it will say the same thing: more cases are disposed of by summary judgment than by trial.

How am I proving your point? A federal case is roughly three times as likely to be disposed of via summary judgment than via trial. Doesn’t that prove the summary judgment is heavily used? And doesn’t the fact that only around 2% of cases make it to trial prove that there simply can’t be that many frivolous or meritless lawsuits that make it to a jury?

Judicial Hellholes

You know what bugs me about the Ministry of Propaganda, er, ATRA and their cute little “Judicial Hellhole” study? The failure to acknowledge that there are also jurisdictions that tip the scales of justice heavily in favor of defendants. Certain counties in Texas, for example, are notoriously defense-oriented. Yet the ATRA has yet to cite one of those districts as a Judicial Hellhole. Why is that? Could it be because they actually aren’t concerned with whether the justice system is fair, but are instead concerned only with whether the justice system is fair to corporate defendants?

5 Ted 09.18.06 at 11:28 am

1. Lane Hypothetical. If it makes you feel better to believe that a law that would eliminate some cases of plaintiffs’ searching for deep pockets in the liability system isn’t a “liability reform,” I won’t push your self-delusion too hard. But if you ask your trial-lawyer allies, you’ll find that they’re the ones who oppose it, and reformers are the ones who support such a change in the law. If you were a regular reader of Overlawyered, you’d recognize that one of the major complaints reformers have about the status quo is the tactic of the trial bar to seek deep pocket defendants who are only tangentially responsible for the intentional crimes of another. See, for example, Aug. 10; Aug. 5; Jun. 17; Oct. 27, 2003, and many many more. I’m glad to have you as an ally in this critical matter of liability reform, even if you don’t want to call it liability reform. I just wish you would make these arguments in response to your co-blogger, who argues that airliners and airports and building owners should face bankrupting liability for the intentional crimes of Osama bin Laden and Mohammed Atta. (See also Oct. 27, where trial lawyers successfully argued that the murderers in the first WTC bombing were only 32% responsible.)

2. Perjury. Brickman’s work suggests that 80-90% of asbestos cases involve plaintiffs with no injury. Perhaps as many of half of the Vioxx cases are similarly tainted. Whatever the extent of defense perjury, I’ve seen no evidence that it’s anywhere near that level of magnitude, and have seen no evidence of defense perjury in the Vioxx trials.

3. Statistics. You are making Galanter’s mistake of assuming that the 2.2% figure reflects defense success, rather than plaintiff success. The reason so few cases get to trial is because plaintiffs can impose such high risks (and high litigation costs) on defendants that defendants pay extortionate settlements to get out of meritless cases. Liability reform and the liability system is about more than just trials.

4. Judicial hellholes. The “pro-defense” counties you describe are fictional, unlike the very real Madison County, with its very real problems. There’s a reason plaintiffs engage in extensive forum-shopping and fraudulent joinder. That you resort to ad hominem attacks on ATRA, rather than on the merits of the very real problems they identify, shows a fundamental lack of seriousness in addressing these issues.

5. I don’t believe you when you say your metric is always safety over efficiency. I explain why in this post.

6 Deoxy 09.18.06 at 12:28 pm

“I oppose any tort “reform” measure that places corporate efficiency ahead of the public safety.”

No, you don’t. At least, you don’t ABSOLUTELY. No one does.

Now, to the extent you meant that (which I believe would be something like, “corporate PROFITS, over and above what is reasonable” instead of “corporate efficiency”), I most certainly agree. I would guess (fairly safely, I think) that Ted would also agree.

The problem is that the current system actually has a net-NEGATIVE impact, or at least, there is a strong orgument that this is so, and it in-arguaby has larg areas of negative impact.

That is, many positive and, at times, safety-INCREASING things are NOT done because of the ridiculous liabilities and outcomes of the current legal system.

Recent example from this site (and there are plenty of others): airline mechanic safety meetings, where the mechanics would all get together and share safty tips, possible safety issues, maintenance tips, etc, etc. Thse were discontinued, because, in the event of a disaster (which WILL happen evntually, no matter how careful), the resulting plaintiffs could (and did) fish through the notes from such meetings to find any kind of refernece to any related problem to show that the airline in question “should have KNOWN!”, and thus bring a cause or increase final outcome.

That is, doing more for public safety resulted in a net INCREASE of liability and financial loss.

THAT demands reform. ESPECIALLY by what you seem to think is important!

7 David Nieporent 09.18.06 at 4:10 pm

Not to beat a dead horse or repeat myself, but the number of cases disposed of via summary judgment, small or large (less than 8% certainly doesn’t seem very large to me — and also note that this includes cases where the PLAINTIFF won via summary judgment) misses the point.

Regardless of the percentage, it wouldn’t prove that the system didn’t need reform. A case disposed of via summary judgment imposes significant costs on the defendant, and is never quick. Leaving aside that summary judgment typically occurs towards the end of discovery, the actual motion process itself can take months.

Part of the problem here is that the anti-tort reformers never seem to want to acknowledge the costs of litigation — even successful litigation. A tort reformer wants to weed out such cases long before the summary judgment stage, before the defendant incurs such costs.

8 Justinian Lane 09.18.06 at 4:27 pm

Judicial hellholes

Let me get this straight, Ted. Are you actually claiming that there isn’t even ONE jurisdiction in the entire country that is pro-defense? Not even in the most conservative Republican county in the most conservative state in the country? Not even one judge who is biased in favor of defendants?
Your staunch refusal to admit that there are bad apples on your side of the issue really makes it hard to take your arguments seriously. At least I’ve never denied that there are crooked plaintiffs’ attorneys…

9 Ted 09.18.06 at 4:41 pm

Shall I assume by your change of subject that you’re conceding the other points?

My position is that I have seen no evidence of a single jurisdiction that systematically violates the due process rights of plaintiffs the way that those of out-of-state corporate defendants are violated by jurisdictions identified as judicial hellholes.

I’m open-minded enough to recognize the possibility that one exists. The fact that noone has identified such an animal with specificity, though they have plenty of incentive to do so, suggests to me otherwise.

10 Jim 09.18.06 at 5:51 pm

Justinian, even if there were these “pro-defense” counties, they couldn’t go grab cases of their own accord. Plaintiffs would still seek out lowest-common-denominator courts that favored their side — and that would permit fraudulent joinder and refuse reasonable change-of-venue requests. Plaintiffs get to decide where to file, and defendants simply don’t have the same power in this game.

11 Deoxy 09.18.06 at 6:11 pm

“Are you actually claiming that there isn’t even ONE jurisdiction in the entire country that is pro-defense?”

Actually, this doesn’t even matter – for the sake of argument, I will grant you that such locations exist.

That doesn’t change the situation in any appreciable way, as the PLAINTIFF is the one who files the suit and who thereby (essentially) chooses the venue. Notice how all kinds of odd cases end up in Madison county, for instance.

The plaintiff (in any case that involves significant claims at all) will simply not fil their suit in the defense-biased court.

Of course, as Ted pointed out, people often claim such places exist, but I have yet to see an actual example of an actual place given.

12 jay wilson 09.19.06 at 12:46 pm

Ted, in reference to the variance argument you use to support the proposition that plaintiffs force risk-averse defendants into settling for fear of a “jury gone wild,” do you not recognize that plaintiffs are often times more risk-averse than a corporate defendant? If you haven’t already, read Professor Guthrie’s analysis in his frivolous litgation article, 67 U.Chi.L.Rev. 163 (2000); he makes a well-reasoned argument that plaintiffs are, in fact more risk-averse.

13 Ted 09.19.06 at 1:03 pm

Jay, you should reread Guthrie, who says precisely the opposite.

Guthrie’s abstract model also ignores (1) the transactions costs of trials; and (2) the issue of modern-day mass-tort litigation, where the “plaintiff” is really a well-funded group of law firms with a portfolio of litigation opportunities that doesn’t mind losing the majority of their cases.

14 Cyrus Dugger 09.20.06 at 1:21 pm

I clearly disagree with your characterization of TortDeform.com just as you would likely disagree with my characterization of overlawyered.com, but I think that we may simply have to agree to disagree.

I also honestly wish that you would engage with the issues raised and not the biographies of those who make them.

Some tort “reform” supportive comments have attacked the fact that some of our contributors are not practicing attorneys.

I quick google check of Walter Olson, finds many accolades and citations to him by publications like the WSJ and NYTimes, but does not show attendance of any law school, let alone the status of a practicing lawyer.

(please correct me if i am wrong but the attacks on my peer caused me to look)

http://www.legalreforminthenews.com/ROL/Olson_bio.html

I still respect Walter’s view of things as do the many sources which he lists in his bios, and as such, those who agree with his views should not attack the biographies – but instead the ideas – of those who disagree with them.

Engage with the ideas and stop the personal attack mode of interaction between tortdeform.com and overlawyered.com – we could have a great discussion and may find areas in which we actually agree.

15 Cyrus 09.20.06 at 2:39 pm

we also explicitly linked to your site to provide a different viewpoint ie we said

other think this [insert link]

I’m amazed you would use an attempt to give your side’s perspective some time as a way to take a distorted angle on attacking the points made on tortdeform.com

seriously.

16 Ted 09.20.06 at 3:54 pm

Returning to the motes and beams theme, there’s a certain type of chutzpah exhibited by the proprietor of a blog who protests the tone of responses of anonymous commenters at the same time the top post on his very same blog consists of a fact-less post insulting all reform supporters as bitter, corrupt, stupid, or some combination thereof. Especially given that the blog post is directly under Dugger’s control, while neither Walter nor I am responsible for the quality of every anonymous blog comment Dugger receives. I suggest Dugger get a thicker skin if he seeks to become a public figure, since those comments are positively innocuous compared to the hate mail Walter and I have received.

I never claimed that one needed to be an experienced legal practitioner to comment on the legal system. But Dugger is confusing criticism of the legal errors he and his co-writers make regarding basic principles of civil procedure (such as confusing a judge’s 12(b)(6) ruling with findings of fact) and contract law (such as ignoring the plain language of a contract’s self-defined terms to argue that a Wikipedia definition is the relevant grounds of decision). It’s true that experienced legal practitioners wouldn’t make those fundamental mistakes that discredit everything else one writes on the subject, but neither would Walter Olson. As a matter of basic logic, “if a writer makes errors of basic law then the writer is not an experienced legal practitioner” does not imply “if the writer is not an experienced legal practitioner then the writer will make errors of basic law.” I’ve restricted my criticism of Dugger to his poorly-reasoned posts and poor public-policy proposals, rather than to his biography, which is irrelevant to me. His argument is weak enough without any need to resort to ad hominems.

An example of this problem of Dugger’s argumentation is his second comment above. Why precisely is Dugger upset at my mention of the coffee post? I can’t tell. I noted that his post gives no indication of having actually read anything Overlawyered wrote on the issue despite the fact he linked to Overlawyered. This is demonstrated by the fact that he simply repeats arguments that Overlawyered demonstrated to be false without so much as an acknowledgment that he was misrepresenting the facts or defense of that misrepresentation. In response, he notes that he did precisely what I said he did, which is link to Overlawyered.

For the record, I didn’t “characterize” Dugger’s blog. I made an empirical statement of fact that its posts are riddled with basic legal errors and failure to address opposing arguments on their terms. Or does Dugger wish to persist in his claim that the Whitman case’s 12(b)(6) ruling made findings of fact?

17 Cyrus Dugger 09.20.06 at 7:30 pm

Hi Ted,

Thanks for your comments.

You just wrote a lot. But I will focus on our disagreements about legal issues.

Given that the Supreme Court of the US often makes 5-4 decisions, I think that your belief that your legal analysis is assumptively correct, simply because it is yours is slightly short-sighted.

In response to your post on Tort Deform I already agreed that it’s not fair to portray the case as a finding (although I also state he reasons why I did in that particular case)

Like you, not every argument rings true. In researching the McDonald’s post, I did read overlawyered posts, but found them unconvincing.

The fact that I linked to it might indicate this, but I always read as much of both sides of an issue as is possible.

I this were not the case, I would ignore your posts.

Please keep them coming!

I am sure since Tort Deform is so off-base. You have no reason to even come over to it and comment.

I think that fact that you do, speaks volumes.

Don’t get me wrong I think that it is great, but everybody should note that you guys came over to Tort Deform, before we ever came over and made comments over here.

Just an FYI.

But back to the tone…..

I am simply advocating for more civility than seems to be the norm amongst bloggers and commentators on http://www.tortdeform.com you are welcome to run your blog anyway you wish.

18 Cyrus Dugger 09.20.06 at 7:32 pm

Hi Ted,

Like I said before, and as you say above, I think non-lawyers can be great commentators on legal issues.

But I just want to confirm whether Walter Olson is or is not a lawyer.

I specifically asked above, but you don’t specifically answer in your post.

Please do.

19 Ted 09.20.06 at 7:42 pm

Dear Cyrus: (1) You didn’t “specifically ask” anything. (2) Even if you had specifically asked, I’m not inclined to do your homework for you unless you’re willing to pay my hourly consulting fee. Time I waste correcting your misunderstanding of Civil Procedure 101 or looking up other people’s resumes isn’t time I can be using on more productive activities.

Dugger says my arguments aren’t convincing because… well, because Dugger says so. Ipse dixit. If anything’s convincing, that sure is.

I’m not sure why Dugger finds it significant that I commented on his blog before he commented on mine. (I fully admit: I waste too much time in comments sections. It’s a bad habit.) He linked to our blog before we linked to his, and links are surely more important than comments. What do we win for that?

Dugger again exhibits a great deal of chutzpah by criticizing the tone of others when his bloggers regularly post ad hominem attacks. If he wishes to advocate civility, let’s see him dress down Lane for incivility far worse than anything ever published on Overlawyered. Again, motes and beams.

20 Cyrus Dugger 09.20.06 at 10:22 pm

Hi Ted,

Thanks for your comment.

I personally don’t care if Walter Olson is a lawyer or not.

I only even thought to ask becasue some people, (and I’m not saying you although I should double check) were condescedning to TortDeform.com’s Justinian Lane (the topic of this entire blog post) because he is not a lawyer.

I am not asking you to do “homework.” I believe that he is not a lawyer and am asking you to correct me if I am wrong.

I am asking you a straightforward question to which you know the answer as he is a tort “reform” peer of yours.

It’s really weird that you won’t say either way, but as I said, I don’t care, I will listen to his views (as many already do) either way.

Cyrus

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