Another entry into the genre of for-profit websites offering to match aggrieved visitors with lawyers, this one is said to be based on a slightly tweaked format (including “talk to a live lawyer” options) sidestepping certain potential pitfalls ethical and otherwise. (Siobhan Morrissey, Time, Aug. 6). Per its press release:
…The unique process used by WhoCanISue.com also ensures that cases are not jeopardized inadvertently, a common pitfall of some other approaches to online matchmaking. Because WhoCanISue.com does not require submission of open-ended descriptions of the facts of the user’s claim, users are not forced to divulge information that could be deemed a waiver of the attorney-client priviledge [sic] resulting in the information being introduced in court and used against them.
WhoCanISue.com does not generate “leads” to potential clients, a method commonly used in online legal marketing that violates ethical rules governing most attorneys’ advertising. Instead, WhoCanISue.com’s patent pending model allows attorneys to bid on real-time ad placements – usually limited to five attorneys – delivered to users who have completed question paths to determine their qualification for a particular claim.
An earlier entry in the legal-matchmaking field, SueEasy.com, has come in for a fair bit of criticism in and out of the profession (“hairball generator“, “incredibly stupid” idea, “like a carpool for ambulance chasers“, etc.).
Reactions: Bill Childs does some legwork on the site’s sponsorship, throwing cold water on hasty, sloppy, or gullible speculation in some circles that the site might be a false-flag operation. Eric Turkewitz and Carolyn Elefant aren’t any more impressed this time around than they were with SueEasy.com.
Justinian Lane crows: Pfizer fined by an Australian trade group! Indeed it was; drug reps went off the reservation of what they were supposed to talk about without telling managers, and exaggerated the health effects of a competing drugs for personal profit. (Note that there was no need for a regulator or plaintiffs’ attorneys to get involved; this was entirely an Australian free-market self-policing arrangement through contractual agreements that fined Pfizer. Lane forgets to mention that part.)
Lane thinks this is a just result worth noting. So let us consider that trial lawyers do the same thing every day: lie about or exaggerate health effects of drugs for profit (just Google the name of any prescription drug to get a lawyer’s ad)–and without the intermediating effects of doctors to assess the claims and correctly inform patients, so it is clearly worse. But the lawyers do so with impunity, with no consequences for the adverse health effects on patients. (E.g., POL June 2007; POL Feb. 12.) There’s no private cause of action; and the trial bar and its professional organizations lionize such tactics, rather than punish them. All we can do is criticize plaintiffs’ lawyers for putting profits before people.
You may recall a manufactured dispute over the former West Virginia Justice Richard Neely‘s quote in The Product Liability Mess:
As long as I am allowed to redistribute wealth from out-of-state companies to in-state plaintiffs, I shall continue to do so. Not only is my sleep enhanced when I give someone else’s money away, but so is my job security, because the in-state plaintiffs, their families and their friends will re-elect me.
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Overlawyered favorite Justinian Lane thinks he’s discovered a smoking gun in the Knology arbitration clause:
All disputes arising out of or relating to this agreement (other than actions for the collections of debts you owe us) including, without limitation, any dispute based on any service or advertising of the services related thereto, shall be resolved by final and binding arbitration… (Emphasis added.)
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As I’ve previously noted:
“As long as I am allowed to redistribute wealth from out-of-state companies to in-state plaintiffs, I shall continue to do so. Not only is my sleep enhanced when I give someone else’s money away, but so is my job security, because the in-state plaintiffs, their families and their friends will re-elect me. ”
– Richard Neely, Justice, West Virginia Supreme Court, The Product Liability Mess at 4
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At Bizarro-Overlawyered, Justinian Lane states:
Ted Frank at Overlawyered falsely claims that “In civil court, a default judgment can be obtained merely on a plaintiff’s say so. In contrast, most arbitration agreements require the arbitrator to scrutinize the evidence before granting an award, even when the debtor does not contest the arbitration claim…” A default judgment against a debtor will be based upon the same evidence in civil court or in arbitration: an affidavit or affidavits from the creditor alleging that the debtor owes a specific sum. Both the judge and the arbitrator will “scrutinize” the affidavit in the same way; they’ll check to make sure names and sums are correct.
It will be no surprise to long-time readers of Overlawyered that Justinian Lane is 100% incorrect.
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As if to demonstrate that their website is simply reflexively anti-reform rather than anything to do with the justice they supposedly aspire to, one of their trolling bloggers attacks the American Justice Partnership for seeking predictability in the law (and does so by quoting a positively deranged anonymous blogger). Of course, predictability—that like cases are treated alike—is a fundamental component of the definition of justice. The social benefits of the rule of law are so obvious that it should hardly be necessary to list them, but, aside from issues of fundamental fairness enshrined in our Constitution in the ex post facto clause among other places, predictability has other advantages. If a result is predictable, settlement is easier: there’s little point in continuing to litigate on either side, because additional money spent on lawyers cannot change the result. If a result is predictable, one can more easily conform conduct to be law-abiding. Corporations aren’t incentivized to break contracts with one another to see whether they can get a better deal in the courts; individuals and corporations know where the line is in dealing with the public and won’t step over it. And as I noted last year,
In banana republics across the globe, economies come to a standstill because the risk of confiscation or corruption keeps many investments from ever happening. The same danger occurs when the expropriation is conducted by lawyers in the name of “justice.” If businessmen and entrepreneurs—be they insurers, manufacturers of lifesaving pharmaceuticals, or the small businesses that deliver your packages—have to account for the risk that their contractual arrangements will be disregarded by courts, they have to raise prices to account for that risk. Such increased prices mean fewer contracts are signed and fewer businesses are started. Consumers are worse off, not just because they now have fewer options, but because the economy is smaller as jobs and opportunities are lost. The only beneficiaries are the lawyers.
The poster knows darn well that the idea of predictability in justice hardly originates with Dan Pero and reformers. As I once noted to the same poster in a comment thread:
Since when is predictability a component of justice?
Since at least Aristotle, and arguably even further back to Mosaic law and the Code of Hammurabi.
If a desire for predictability in law makes one a reformer, then one can certainly add Plato, Thomas Aquinas, Montesquieu, Justice Holmes, and Lord Chief Justice Bingham of Cornhill to the list of reformers. More recently, one can read Richard Epstein on the subject. Justinian Lane would serve himself better by reading more books and fewer anonymous blogs before he asks such silly questions.
Justinian Lane responds to my recent Liability Outlook about the Buell-Wilson case (Jan. 4 and links therein). The PDF version has pretty typesetting and graphics in lieu of substance, though I question the choice of Futura (a sans serif typeface designed for display) as the font for the main text, as well as the use of oversized bullets.
I was especially impressed that Lane responded to my criticism of the inaccuracy of the court’s description of the case by quoting the court’s description of the case, and my criticism of California evidentiary rules by citing California evidentiary rules. Lane doesn’t explore the implications of his explicit contention that juries get it right only seven percent of the time, an even better argument for reform if it were true than the one I made. Ironically for a piece that purports to “set the record straight,” Lane has more misrepresentations of my argument and factual errors than I have time to spend counting.
To take a non-obvious one, Lane’s description of the Grimshaw case is incorrect (or at least poorly worded, depending on what he means by “backfired”): comparative evidence in that case showing that the Pinto was safer than other subcompacts and no more likely to explode was excluded over Ford’s objection. (In the famous case against Ford brought by state prosecutors over the Pinto, Ford was allowed to introduce that evidence, and an Indiana jury acquitted Ford.) I leave it to the error- and non-sequitur-seeking reader to peruse Lane’s other arguments, including the claim that the amount of the award against Ford is justified because Lee Raymond contracted with Exxon to receive stock options that, after the share price went up, turned out after the fact to be worth a lot of money.
But let’s give credit to Bizarro-Overlawyered for their new tack of acknowledging the existence of other arguments, even if they still can’t bring themselves to address them head-on or link to what they purport to be commenting on. Judge for yourself.
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.
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.
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For those who care about these things, Justinian Lane demonstrates a fundamental lack of reading comprehension in a response to my earlier post. Lane writes: “If I do the very thing I oppose, that does indeed make me a hypocrite.” This is technically inaccurate in a prescriptivist sense (look it up), but even under the descriptivist definition, Lane continues to confuse the idea of “I believe that X is bad public policy” with “I believe those who take advantage of X are immoral.” This is precisely the error I pointed out in the original post, but Lane says nothing to rationalize the conflation other than to repeat the assertion. He then proceeds to insult me for taking a legal tax deduction. Let’s be clear: I don’t oppose individuals taking Schedule A deductions for state taxes; that’s just common sense, and one’s tax rate is already higher to reflect the fact that deductions are available. I oppose the government’s policy of offering deductions for state taxes. There’s no hypocrisy, any more than there is hypocrisy because Lane pays his federal taxes even though his taxes are used to support the war in Iraq or some other government spending that he might object to, or because Lane votes for an elected official who doesn’t agree with Lane on every single jot and tittle.
Lane opposes making people better off through lower prices and higher wages, as Wal-Mart does; that is his right, and (unlike John Edwards) he can feel good about his abnegation that he goes without a toolbox because Wal-Mart is the only store that provides a reasonably priced model (though I don’t see Lane demanding to pay his supermarket and other stores more money to reflect the fact that they lowered prices to match Wal-Mart’s competition, so he’s not completely innocent of taking advantage of the benefits Wal-Mart brings to the economy). But it’s not remotely analogous to the scenario I describe.
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Bumrungrad International Hospital in Bangkok, Thailand, treated 58,000 American patients in 2005, and looks to treat 20 percent more this year. Why?
At Bumrungrad Hospital, [spokesman Ruben] Toral said, the lower cost of living is a major factor in the savings, but so are differences in how the medical system operates.
Doctors in Thailand pay about $5,000 a year for malpractice insurance, compared with more than $100,000 for some specialties in the United States.
Thai courts will adjudicate malpractice claims, but the largest award ever issued was about $100,000 and the law there doesn’t permit damages for pain and suffering.
(Mark Roth, “Surgery abroad an option for those with minimal health coverage,” Pittsburgh Post-Gazette, Sep. 10). Apparently the Thais haven’t heard the propaganda from the American trial bar that caps on non-economic damages don’t lower malpractice insurance premiums or medical expenses. And apparently, thousands of Americans prefer cheaper healthcare to the opportunity to recover pain-and-suffering damages: unfortunately, plaintiffs’ organizations fight very hard to ensure that American consumers don’t actually get that choice. (Via, of all places, Bizarro-Overlawyered, where one can almost see the smoke coming out of the ears of the posting blogger because of the “Does-Not-Compute” cognitive dissonance.)
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Justinian Lane writes in the comments: “I oppose any tort reform measure that places corporate efficiency ahead of the public safety.”
I don’t believe him. I mean, perhaps Lane honestly believes that one can always put safety ahead of efficiency, but if so, it’s because he hasn’t thought about it very deeply.
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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.
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