4 Comments

Thanks for noticing Jonathan Wilson’s critique of my argument. I wonder if you’d be so kind as to also link to my response, as his site doesn’t allow comments. (I’ve emailed him and invited him to respond.)

Since I know you’ve read my response, I’d also welcome your opinion of it.

Lane and Wilson continue the debate. — TF

Ted: We are basically on the same side. Yet, I have to agree with Lane. You do not post adverse or critical substantive remarks, however, lovingly they are made.

The criticism is the greatest gift, being a free consultation, worth $100’s an hour if purchased from a consultant.

I don’t consider myself on the same side as David “Supremacy Claus” Behar, who regularly states “I oppose all tort reform.” In any event, this site regularly posts adverse and critical substantive remarks; Seth Oldmixon of Public Citizen has had 100% of his comments approved. Aside from spammers, there are precisely three abusive commenters affected by my moderation, one who is banned permanently, and two (Lane and Behar) who have a presumption against their comments based on their past record of trolling and attempting to hijack discussions with off-topic comments. Walter has whatever standards he has for the comments on his posts. — TF

Ted: You have to explain why you will not support the extension of the value of full torts liability to the lawyer profession.

At the very minimum, the lawyer has express duties to the adverse third party, enumerated in the Rules of Conduct, the Rules of Evidence, the Rules of Civil and Criminal Procedures. Their violation represent per se torts against adverse third parties.

The lawyer has dealt himself an unjust privity obstacle to accountability to the adverse party. No other group has had that obstacle to accountability in torts for 100 years. The misuse of a civil procedure or abuse of process claims require malice, scienter, and almost a recording of such. This is impossible in ordinary practice. One case did succeed, naturally the plaintiff was another lawyer, with a videotape of the expression of the hostile intent and animus of the defendant. It is remarkable by its precious rarity.

Even the client of the lawyer with privity must overcome the “trial within a trial” hurdle to get lawyer accountability. This rigging exposes the profession to the risk of self-help.

I oppose tort reform because where it has been enacted, the effect has been small. If it worked better, I would quickly change my mind.

We are on the same side of the question of whether we are overlawyered.

I want to deter overlawyering. You seem to just want some shielding for corporate sponsors. Our dispute is about the path, not the about the destination.

I support the elimination of all immunities, including repealing the 11th Amendment. At least, Hans should be reversed by statute, since it contradicts the plain language of the 11th Amendment.

If people look at legal immunity in history, immunity causes growth. Royalty, the church, railroads, the lawyer profession, the judiciary, government in general, the internet. While immune, all exploded in growth. When immunity ended, as when Louis XVI was beheaded, royalty shrank.

I have found it funny that top torts people have yelled “litigation explosion,” at this proposal. I have more faith in the deterrent effect of torts than the lawyer.

If you can think of anything more substantive than statutory exposure of the lawyer to litigation by a class of adverse third parties, to remedy overlawyering, I am open to it.

This is not personal, since I admire your intellect. I always learn something when you speak. We disagree on tactics.

Please look for a blog on fundamental if loving correction of the lawyer profession in 2007. Your comments will be put through, even if they make me look wrong and stupid. I consider such correction a favor.

If you decide to not post this message, it is more important to me that you understand my good will toward you, even if kept private.

Upon David Behar’s unsolicited promise to never comment here again if I did so, I approved his 12/2 10:21 PM comment, though it is precisely the sort of off-topic troll/attempt to hijack a comments thread I previously complained about. I’ve watched Behar propound his half-baked idea that privity is the key to the world on several different blogs, almost invariably as a non sequitur, have witnessed him engage in dozens-comments-long threads where dozens of commenters patiently point out the multiple practical problems with his theory and proposed change in the law without ever once listening to reason or adjusting his position to accommodate the discussion he was hearing, and often getting himself banned from those other sites because of his strident and insulting monologues. It drowns out legitimate discussion, and I don’t want that to happen here.

Behar is absolutely correct that permitting a cause of action against lawyers for winning a lawsuit would reduce the number of lawsuits. Of course, I don’t particularly care about the number of lawsuits. Reducing litigation is a means to reaching an efficient level of litigation, not an end in and of itself. (If juries were perfect, rather than correct merely the majority of the time, caps would be entirely unnecessary.) I don’t even oppose efficient litigation against corporate wrongdoing. What I oppose is inefficient litigation that makes society worse off, and it’s beyond clear that Behar’s proposal is a cure worse than the disease: it would create thousands of inefficient collateral lawsuits that deter both efficient and inefficient lawsuits. It’s remarkably akin to the JAIL4JUDGES insanity in South Dakota that Jonathan Wilson and I have criticized elsewhere.

The place for Behar to push his idea is his own blog, not mine. By this comment alone, I’ve given it far more time and attention than it deserves.