Public Citizen wrote a report about New York medical malpractice that said:

Physicians who made three or more malpractice payments between 1990 and 2006 – accounting for no more than 4 percent of New York’s doctors – were responsible for nearly half (49.6 percent) of medical malpractice dollars paid out on behalf of doctors in the time period.

This is technically true, but wildly misleading; we previously refuted this precise statistic as a natural statistical consequence of any randomly distributed set of payouts–and given that doctors in high-risk professions such as neurosurgery or ob/gyn are far more likely to be sued than dermatologists or gerontologists, the random concentration effect is going to be even more pronounced, so the Public Citizen statistic is meaningless without a showing of speciality-adjusted correlation between time periods–something no study has ever found.

But note how blogger Eric Turkewitz writes an op-ed in a small-town New York newspaper that isn’t even satisfied with simply misleading the public, and says something that is out-and-out false:

4 percent of the state’s doctors contribut[e] to half of the malpractice suits [emphasis added]

Not remotely true. “Nearly half of payments” has been turned into “half of malpractice suits.” Justinian Lane, who knows or should know that the latter statistic isn’t true, because his blog posted about the original statistic, then repeats the lie either thoughtlessly or deliberately:

Maybe doctors should discipline the four percent of doctors that make up half of all malpractice claims.

Will either of them retract the false claim with the same fanfare that they made it? Stay tuned. (They certainly won’t explain that there’s nothing damning about the accurate statistic–though I have been refuting this for over three years, Public Citizen and trial lawyers and their fans continue to regurgitate the data as if it means something.)

15-year-old honor student and SADD member Lindsey Billman snuck out of a slumber party with three of her friends and had an alcohol-fueled night with two 18-year-old boys. Around 2:45 a.m., two boys and two girls had the clever idea of stacking milk crates to reach an air-conditioning unit that allowed them to clamber onto the roof of Anna S. Kuhl Elementary School. The two couples went to separate sides of the roof. Billman and Nicholas Moscatiello then had the further clever idea of doing whatever they were doing while sitting on a skylight, which didn’t support their weight, and the 33-foot-fall onto the gymnasium floor below killed Billman.

This is, alleges an Orange County, New York, suit filed by Lindsey’s parents, the fault of the school district and the city of Port Jervis, New York. After all, the district was “irresponsible” stacking milk crates by the school. A curious choice of words: out of the number of people irresponsible here, it seems to me that the district is at most a distant eighth. (Steve Sacco, “Parents suing Port Jervis, school in girl’s fatal fall through roof”, Times Herald-Record, Jul. 26; Adam Bosch, “1 teen dead, 1 critical in fall”, Times Herald-Record, Jan. 27). The attorney is Corey Stark, a 2001 law-school graduate in New York City who has single-handedly refuted the proposition that New York state needs more law schools. (Thought experiment: if the milk crates are an attractive nuisance, why isn’t the dairy liable?)

• High school graduation got rained out in Gilbert, Ariz., and a dad wants $400 from the school district for that [Arizona Republic]
• Happens all the time in one-way fee shift awards, but still worth noting: lawyer in police-misconduct case “billed 22 hours at $480 an hour — a total of $10,560 — just to figure out how much his fees are going to be” [Seattle Times]
• We get to decide and that’s that: New York judge orders that salaries of New York judges including his own be raised [PoL, Bader] Also at Point of Law: white-shoe Clifford Chance throws a party for New York lefties, should anyone be surprised? outsourcing of interrogation to profit-minded private contractors is bad when it’s Blackwater, good when it’s Motley Rice; tax break for trial lawyers said to be blocked for now.
• One firefighter killed in Boston restaurant blaze had sky-high .27 blood alcohol level, the other traces of cocaine, which probably won’t impede the inevitable lawsuit against the restaurant and other defendants [Globe, background]
• Writing again on U.S. exceptionalism, Adam Liptak contrasts our First Amendment with Canadian speech trials; James Taranto thinks he’s siding with the Canadians, but the piece looks pretty balanced to me [NYTimes, WSJ Best of the Web]
• Milberg said to be on verge of deferred prosecution agreement deal with feds involving $75 million payment and admissions of wrongdoing [NLJ]
• Courts in Australian state of Victoria, emulating a model tried in Canada, will resort more to mediation of intractable disputes [Victoria AG Rob Hulls/Melbourne Age]
• Great moments in international human rights: KGB spy on the lam sues British government for confiscating royalties he was hoping to make from his autobiography [five years ago on Overlawyered]

Daniel Radosh is skeptical that the New York Attorney General Andrew Cuomo’s settlement with ISPs Verizon, Sprint, and Time Warner Cable is anything other than a publicity-stunt shakedown. The Financial Coalition Against Child Pornography argues that it is actually counterproductive. Orin Kerr notes that it is of questionable constitutionality. Declan McCullagh suggests, as does David Kravetz, that the ISPs will comply by shutting off customers’ access to broad swaths of Usenet well beyond anything alleged to contain illegal material.

If you wonder why insurance fraud and insurance expense are so high in New York state it’s because of opinions like AA Acupuncture Service v. State Farm Mutual Insurance Company. (The fact that the plaintiff is a quack-upuncturist immediately suggests problems, no?) Civil Court Judge Arlene P. Bluth agreed that there was “uncontradicted, overwhelming circumstantial evidence” that an accident had been faked. But State Farm was still not entitled to summary judgment on the litigation of bad-faith claims by three medical providers who insisted that State Farm was liable as the insurer of the woman who claimed to have been injured in the accident. (Plaintiffs deny fraud, though apparently wasn’t able to rebut the evidence of fraud at the motion stage.)

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* New Jersey: “A federal judge in Camden last week dismissed a lawsuit filed by a band of American Indians seeking to reclaim land they said the state sold out from under them more than 200 years ago. The Unalachtigo band of the Nanticoke-Lenni Lenape Nation demanded the return of 3,044 acres of the former Brotherton Reservation, which sits mostly in Shamong Township in Burlington County.” [Philadelphia Inquirer; Camden Courier-Post/Red Lake Net News, 2006 (expensive law firm of Reed Smith was representing tribal band, which was angling for casino rights)].

* A new C$550 billion land claim launched by the Whitefish Lake tribe (or “First Nation”, to adopt progressive Canadian terminology) includes the entire city of Sudbury, Ontario [Timmins Press, Sudbury Star]

* Second Circuit panel due this week to hear appeal on upstate New York Oneida claim, in which ejectment of current landowners is apparently (for the moment) off table as option [Rome [N.Y.] Sentinel; earlier on Indian land claim litigation].

City governments, sometimes in league with private counsel working on contingency fee, “have started suing banks and mortgage companies to recoup their costs” on such services as “fire departments, police, code enforcement or even demolition” in blighted neighborhoods. “The lawsuits were filed in recent months under different theories, in state and federal court. Cleveland and Buffalo filed suits under public nuisance laws. Minneapolis’ suit was brought on consumer fraud grounds, while Baltimore took the unusual approach of filing suit in federal court under alleged Fair Housing Act violations.” Bank of New York says it was included in Buffalo’s suit against 39 lenders even though it neither originated nor purchased loans, but merely acted as trustee. (Julie Kay, “Empty Homes Spur Cities’ Suits”, National Law Journal, May 9).

Firing your lawyers? Be careful what you say about them in doing so. William and Elizabeth Margrabe had grown increasingly dissatisfied with the legal work done on their behalf by the firm of Sexter and Warmflash in a Westchester County, N.Y. lawsuit over the sale of a stake in a family business. In a letter firing the firm, Mr. Margrabe charged that its work was “fraught with missteps, poor legal judgments, failure to protect your client’s rights on repeated occasions, and poor, adversarial, or misleading communications with your clients.” He further accused the attorneys of pursuing their own interests over those of clients in seeking a hasty resolution of some issues, and also of charging a usurious interest rate on its fee. He copied the letter to the new lawyers he had hired to take over the matter.

How did Sexter & Warmflash respond? It sued the Margrabes for $1 million for defamation. Trial court judge Shirley Werner Kornreich ruled that its suit could proceed, and ruled outright in Sexter’s favor on the Margrabes’ liability for the “usurious fee” allegation, but an appeals court reversed, ruling that the Margrabes were protected by a privilege extended to statements made as part of a legal proceeding. (Anthony Lin, “Law Firm’s Defamation Suit Against Former Client Dismissed”, New York Law Journal, Jan. 10).

Among those to experience the legal hazards of doing so: photographer Michael Gabor and others, facing a suit for $5 million after they posted online comments blasting the developers of a project in the historic section of Newburgh, N.Y. (Oliver Mackson, “Trouble brews in cyberspace over Newburgh blog”, Times Herald-Record, Oct. 15).

I’ve got an op-ed today in the New York Post about one of the less obvious issues in the high-profile race for Governor of New York: whoever wins will get to reshape the state’s highest court, the Court of Appeals, with implications long into the future for the state’s legal well-being. Would a Gov. Spitzer appoint anti-business crusaders to the court? (Walter Olson, “N.Y. Judge Wars: Hidden ‘06 Issue”, New York Post, Jun. 30)(cross-posted at Point of Law) (& welcome readers of Prof. Bainbridge, who says kind things).

I’ve got an op-ed in today’s New York Post about the rising tide of liability lawsuits against New York City and its taxpayers (cross-posted from Point of Law). For more on how Assembly Speaker Sheldon Silver’s office disposes of reform legislation in Albany, see Henry Stern’s NYCivic, Jun. 14.

Following up on our entry of last Aug. 31: Acting Supreme Court Judge Felix Catena has dismissed attorney Romolo Versaci’s defamation suit against Diane Richie, who called Versaci a “so-called lawyer” on a local online message board, saying the expression was by its nature rhetorical opinion and not actionable. Versaci has said he plans appeal. David Giacalone (Mar. 15) has the details.

Those two Long Island men who say they were arrested for telling lawyer jokes at a Nassau County courthouse (see yesterday’s post) were soon deluged with offers by lawyers to represent them for free. Reports Newsday:

“Barbara Bernstein, executive director of the Nassau chapter of the New York Civil Liberties Union, said she found the arrests “bewildering” and she called the men yesterday to determine whether the organization could help. “It’s just bewildering and preposterous that they should be arrested for telling lawyer jokes,” Bernstein said. “What’s the violation of law here?”

(Zachary R. Dowdy, “Lawyers offer help after pair’s anti-lawyer joke arrest”, Newsday, Jan. 13). The two men, Harvey Kash and Carl Lanzisera, have now accepted an offer of representation by radical attorney and New York radio personality Ron Kuby. (”Kuby takes jokers’ case”, Jan. 14). Further update: Jan. 30.

Reports David Giacalone (ethicalEsq):

Elderly Schenectady (NY) lawyer Romolo Versaci has filed a $100,000 defamation suit against Diane C. Richie, an unemployed social worker and widow with two children. Versaci claims — and Richie admits — that she called him a “so-called attorney” on a SchenectadyNY.info message board. …

Versaci says the comment has “greatly injured” his reputation, and adds that “She’s got to stop these cutesy messages and think a little bit.” He has been replaced with another lawyer in the controversy that spawned this lawsuit. Richie says, “I haven’t got $100, let alone $100,000. I couldn’t even imagine a judge looking at this. It’s so stupid.”

Adds ethicalEsq: “Most days, I’d consider being called a ’so-called attorney’ a compliment.” Evan Schaeffer has strong words concerning the action and his comments section should also be checked out. More watch-what-you-say-about-lawyers cases: Nov. 30, 2003, Sept. 16-17, 2002, more. Updates Jan. 19: David Giacalone reports on a further development; Mar. 20: judge throws out case.