“Copyright is a trial lawyer’s dream — a regulatory program enforced by private lawsuits where the plaintiffs have all the advantages, from injury-free damages awards to liability doctrines that extract damages from anyone who was in the neighborhood when an infringement occurred. …Recently, David Boies, famous for his representation of Al Gore, signed a rich contingent-fee deal to pursue a claim that Linux open-source software violates his client’s copyright. Last month, he launched test cases against DaimlerChrysler and AutoZone. If he prevails, businesses all across the country could find themselves paying big damages simply for having purchased Linux servers. It’s asbestos litigation for the Internet age.” (Stewart Baker, “Exclusionary Rules” (review of Lawrence Lessig’s Free Culture), Wall Street Journal, Mar. 26, reprinted at Steptoe & Johnson site)(more on technology and IP law). P.S.: David G. Post of Temple reviews Lessig’s book in the November Reason, and is in turn reviewed (before the fact) by Frank Gilbert at Slinkard Review.
Archive for October, 2004
Lawsuit reform at the debates
[Question about flu vaccine shortage]
BUSH: […] We have a problem with litigation in the United States of America. Vaccine manufacturers are worried about getting sued, and therefore they have backed off from providing this kind of vaccine. [ed.: see Dec. 24 and earlier links]
One of the reasons I’m such a strong believer in legal reform is so that people aren’t afraid of producing a product that is necessary for the health of our citizens and then end up getting sued in a court of law. […]
KERRY: […] This president has turned his back on the wellness of America. And there is no system. In fact, it’s starting to fall apart not because of lawsuits — though they are a problem, and John Edwards and I are committed to fixing them [Oct. 12] — but because of the larger issue that we don’t cover Americans. […]
[Question on medical insurance costs]
BUSH: […] I do believe the lawsuits — I don’t believe, I know — that the lawsuits are causing health care costs to rise in America. That’s why I’m such a strong believer in medical liability reform.
In the last debate [Oct. 9], my opponent said those lawsuits only caused the cost to go up by 1 percent. Well, he didn’t include the defensive practice of medicine that costs the federal government some $28 billion a year and costs our society between $60 billion and $100 billion a year. […]
[Kerry’s response addressed Medicare bulk purchasing, the uninsured, and prescription drug reimportation, but not medical malpractice reform.]
Alex Tabarrok also has more on vaccines.
A blawg’s pro bono trial
The Uncivil Litigator is a blog of a mid-level associate whose practice consists mostly of insurance disputes. The insights into his daily practice and the litigation culture, told with appropriate humility, will be interesting for law students and laypeople, but so are the unspoken assumptions behind UCL’s work, which unwittingly demonstrate some of the problems with the legal system.
In particular is a pro bono case taken on behalf of an elderly woman with a $800 dispute over an auto accident, resulting in a jury trial. The nine-post tale, told over several months on the blog, is an entertaining small story in and of itself. But, while he complains about the recalcitrance of the opposing defense attorney, at no point does UCL stop to think that he’s partially responsible for thousands of dollars of societal resources (including seven people are giving up a day of work to sit on a jury) that are going to resolve this dispute. Or that his client, the opposing party, the opposing party’s customers, and society as a whole would’ve been better off if he had spent the time he worked on this case with paying clients, and his firm simply wrote the plaintiff a check for a small fraction of those fees. Pro bono means uncompensated legal services for the public good, but here, as with too many law firm pro bono programs, a law firm imposed a huge externality on the public and an opposing party essentially for the purpose of subsidizing an expensive and inefficient training exercise to get a young lawyer experience. Junior stockbrokers aren’t given $20,000 from the public fisc to churn for practice, but when lawyers do the equivalent, it’s extolled as part of the category of cases where the pro bono lawyer really is working for the public good without pay.
Update: UCL responds, though he confuses a systemic criticism (are there better ways for society to handle small disputes than full-blown trials with all the trappings?) with a personal criticism that wasn’t there.
Another update: Professor Martin Grace initiates a discussion on his weblog.
Connecting the dots
Childhood obesity is up, in part, because, while 90% of kids who lived within a mile of school walked to school a generation ago, that figure is now 31%. (And, ironically, the tendency of parents to drive kids to and from school has increased traffic near schools, increasing the chances of pedestrian-auto collisions.) An article in Salon discusses the Safe Routes to School program. SR2S hopes to encourage more kids to walk to school by assuaging parents’ safety concerns by using elderly volunteers to create “walking school buses,” but the program has found trouble getting off the ground because of liability concerns. Don’t expect John Banzhaf to bring a class action against lawyers for their role in the obesity epidemic–or Salon to remember this problem the next time they fulminate against tort reform. (Linda Baker, “Walk to school, yes, but don’t forget your lawyer”, Salon, Oct. 13).
Willie Gary marketing tactics
There is, perhaps, a niche of personal injury clients for whom an ostentatious display of personal wealth and a video with the theme from “Rocky” and a Michael Buffer impersonator narrator will be especially persuasive. If so, attorney Willie Gary (Jan. 7, Dec. 23) has that market sewn up (streaming Windows Media). Do not stare directly at the light coming out of Willie Gary’s right hand in the photo next to that of the private jet. (via Schaeffer)
Dazed and Confused
If you see Bobby Wooderson, Andy Slater or Richard Floyd of Huntsville, Texas, don’t ask them if they wanna smoke a joint. The three former classmates of “Before Sunset” director Richard Linklater have decided, eleven years after the fact, that the Linklater movie “Dazed and Confused” defames them by using similarly named characters. As evidence of his emotional distress, Wooderson cites the fact that his son was asked for autographs by his Harvard classmates. (But how did they find out if his son wasn’t bragging about the coincidence?) Another plaintiff told a desk clerk that he was “the guy from ‘Dazed and Confused'” and was supposedly mobbed by a lobby full of fans–no doubt because New Yorkers are so enthralled by the sight of such a celebrity. The three are so upset that people associate them with a movie that did $8 million in box office in 1993 that before they served Linklater with the suit, they had their attorneys issue a nationally-publicized press release. They’ve sued in New Mexico, because Texas law doesn’t allow one to wait eleven years before suing for defamation. Actor Wiley Wiggins complains about “the sad sacks back in Huntsville who are trying to cash in 11 years later over vaguely having something to do with a movie.” (Andrew Tran, “Modified names spur ‘Dazed’ lawsuit”, Daily Texan, Oct. 12; Tom Waddill, “Three Huntsville residents file suit over negative resemblances in popular cult film”, Huntsville Item, Oct. 11; Chris Rush Cohen blog, Oct. 8).
Full disclosure: I once represented co-defendant Universal years ago. But that was about the Grinch.
“Did John Edwards Mean to Say What He Said He Meant?”
George Wallace more closely parses John Edwards’s answer at the debates (Oct. 5):
We do have too many lawsuits, and the reality is there’s something that we can do about it. John Kerry and I have a plan to do something about it. We want to put more responsibility on the lawyers to require before a case of malpractice, which the Vice President just spoke about, have the case reviewed by independent experts who determine the case is serious and meritorious before it can be filed; hold the lawyers responsible for that, to certify that, and hold the lawyer financially responsible if they don’t do it; have a three strikes and you’re out rule so that a lawyer who files three of these cases without meeting this requirement loses their right to file these cases.
If Kerry-Edwards are really proposing screening by “independent experts” to determine that a case is “serious and meritorious”, this is an innovative and very real reform. One suspects, however, that these are just focus group buzzwords: in the legislation Edwards co-sponsored in the Senate (POL Sep. 27), “independent” meant that the plaintiff’s attorney got to hand-pick an expert-for-hire to sign off on the case (which is, in most states, already a requirement to survive a summary judgment motion) and “serious and meritorious” meant simply “not brought to harass” or “colorable.” These are merely cosmetic hurdles to suit.
Tobacco class action update
Plaintiffs defending the insane $10.1 billion class action judgment (Feb. 8; Mar. 24, 2003) have retained as co-counsel a law firm associated with a Republican Illinois Supreme Court justice in an effort to have him disqualified from the case. (Paul Hampel, St. Louis Post-Dispatch, “Smaller court may hear tobacco case in Madison County”, Oct. 3; Ameet Sachdev, “Philip Morris seeks removal of law firm”, Chicago Tribune, Sep. 1 (no longer online)). The Edwardsville Intelligencer (in a strange story whose math seems to be wrong in other particulars) reports that Madison County has received a $1.7 million windfall in interest from Philip Morris from the bond (Apr. 4, 2003) it posted to appeal that judgment. (Steve Horrell, “County is cashing in”, Oct. 8).
The Seattle Times has a retrospective look back at the comprehensive tobacco settlement (Feb. 28 and links therein) negotiated in large part by Washington state Attorney General Christine Gregoire, and notes the irony that it forced the state to ally itself with Philip Morris to protest the amount of the bond (see also Apr. 30, 2003). (Andrew Garber, “Tobacco settlement Gregoire negotiated not popular with all”, Oct. 4). But the bad news for Altria shareholders, states hoping to continue receiving tobacco funds, and the ability of Americans to conduct business is that plaintiffs continue to pile on with similarly meritless class action lawsuits, waiting to find the combination of judges who dislike tobacco companies enough to expand class action law rather than rule in their favor. Plaintiffs’ lawyers will bring dozens of these lawsuits, and need win only one multi-billion dollar judgment to become the new owners of the enterprise. The Massachusetts Supreme Court recently signed off on a class action against Philip Morris, and lower courts in Missouri and Ohio have followed suit. (AP, Sep. 17; Theo Emery, AP, Aug. 16).
Update: Hollins v. Jordan
American Medical News has additional details on the Ohio cerebral palsy medical malpractice case of Hollins v. Jordan, which we covered Aug. 31. Interesting new and previously unreported details include: Hollins was an intrauterine growth-retarded baby, yet the plaintiff sought to blame his medical problems on a decision to hold a C-section in two hours instead of one; plaintiffs asked for triple the damages they had disclosed in an expert report; Geoffrey Fieger would regularly interrupt lawyers for the other side as if “to emulate TV trials in which lawyers can do and say whatever comes to mind.” Though Fieger wouldn’t talk to the American Medical News, the two lawyers gave an interview to an Illinois newspaper that seems to be unaware that the judge overturned the May verdict. (Tanya Albert, “Judge: Mega-verdict spawned by passion”, Oct. 11; Mark Samuels, “Difficult Questions: Who Should Pay And How Much?”, The Southern Illinoisan, Sep. 2; James F. McCarty, “Disabled boy gets $30 million”, Cleveland Plain Dealer, May 25). You may or may not be disturbed to learn that there is a Geoffrey Fieger fan club that was unhappy with the Ohio court’s decision, though don’t expect to find much in the way of reasoned analysis there. (Update, Nov. 20: verdict reinstated.)
In other cerebral palsy litigation news, the Wall Street Journal tells the tale of Brenda Stoltz. The lawyers she retained were excited about the prospect of a multi-million-dollar case involving future lifetime medical care of a brain-damaged baby, but when the child died shortly after, the attorneys dropped the case. (Rachel Zimmerman and Joseph T. Hallinan, “As Malpractice Caps Spread, Lawyers Turn Away Some Cases”, Oct. 8 ($), reprint; Grunt Doc blog, Oct. 8; Brad Parker, Galen’s Log blog, Oct. 8). The Journal article notes one side effect with non-economic damages caps; people without income–the elderly, the young, homemakers–who suffer wrongful death can be left without real recourse, though this is true for many types of untimely death.
Medmal reform at the debate
NORMA-JEAN LAURENT: Senator Kerry, you’ve stated your concern for the rising cost of health care, yet you chose a vice presidential candidate who has made millions of dollars successfully suing medical professionals. How do you reconcile this with the voters?
KERRY: Very easily. John Edwards is the author of the Patients’ Bill of Rights. He wanted to give people rights. John Edwards and I support tort reform. We both believe that, as lawyers — I’m a lawyer, too. And I believe that we will be able to get a fix that has eluded everybody else because we know how to do it.
KERRY: It’s in my health-care proposal. Go to johnkerry.com. You can pull it off of the Internet. And you’ll find a tort reform plan.
Now, ladies and gentlemen, important to understand, the president and his friends try to make a big deal out of it. Is it a problem? Yes, it’s a problem. Do we need to fix it, particularly for OGBYNs [sic] and for brain surgeons and others? Yes.
But it’s less than 1 percent of the total cost of health care. […]
CHARLES GIBSON: Mr. President, a minute and a half.
BUSH: Let me see where to start here. […]
BUSH: And what are his health programs? First, he says he’s for medical liability reform, particularly for OB/GYNs. There’s a bill on the floor of the United States Senate that he could have showed up and voted for if he’s so much for it.
Secondly, he says that medical liability costs only cause a 1 percent increase. That shows a lack of understanding. Doctors practice defensive medicine because of all the frivolous lawsuits that cost our government $28 billion a year. […]
GIBSON: Senator Kerry, we got several questions along this line, and I’m just curious if you’d go further on what you talked about with tort reform. Would you be favoring capping awards on pain and suffering? Would you limit attorney’s fees?
KERRY: A follow-up…
GIBSON: Yes. A follow-up on this for…
KERRY: Yes, I think we should look at the punitive and we should have some limitations.
But look, what’s really important, Charlie, is the president is just trying to scare everybody here with throwing labels around. […]
GIBSON: […] Thirty seconds, President Bush.
BUSH: You’re right, what does matter is a plan. He said he’s for — you’re now for capping punitive damages?
BUSH: That’s odd. You should have shown up on the floor in the Senate and voted for it then.
Medical liability issues are a problem, a significant problem. He’s been in the United States Senate for 20 years and he hasn’t addressed it.
We passed it out of the House of Representatives. Guess where it’s stuck? It’s stuck in the Senate, because the trial lawyers won’t act on it. And he put a trial lawyer on the ticket.
As the Washington Post notes, “Kerry glossed over his opposition to” medical malpractice caps. Unfortunately, the Post’s “Debate Referee” adjudicated that Bush exaggerated the effect of caps–and then proceeds to make the same mistake Bush criticized Kerry for, by omitting the effect of caps on defensive medicine costs by taking a statement in a CBO report out of context. As I noted on Point of Law,
What the CBO says is that, assuming medical malpractice expenses are 2%, reducing those expenses 25% will, as a matter of simple arithmetic, reduce total health care expenses by 0.5%. But, as Dr. Chusid acknowledges, that 2% assumption for medical malpractice expense is a great underestimate. There’s more than just insurance premiums: there’s the billions spent on inefficient defensive medicine, on hospital in-house lawyers, on time doctors spend with lawyers instead of with patients, on time doctors spend papering the record to protect themselves in event of suit, and on self-insurance–many hospitals don’t use a middleman insurance company. And for a number of disciplines, the malpractice insurance rate is unquestionably higher than 2%–the average OB/GYN pays a quarter of her net income in premiums.
The Post didn’t referee–they took sides in a controversial public policy debate, and did so on inaccurate information.
Mickey Kaus calls Kerry’s “I’m a lawyer too” the “worst-polling line of the night.”