Overcautious emergency care, and what one doctor did when he saw it happening (“Specter of medical liability creates enormous cost”, no byline given, The Olympian, Nov. 28)(via, in order, Common Good MedWatch, Dr. Rangel, and KevinMD).
Archive for 2006
“Create an e-annoyance, go to jail”
“Annoying someone via the Internet is now a federal crime.” Declan McCullagh at CNET sounds the alarm about a provision quietly tucked into the so-called Violence Against Women and Department of Justice Reauthorization Act. Sec. 113 of the bill, entitled “Preventing Cyberstalking,” “rewrites existing telephone harassment law to prohibit anyone from using the Internet ‘without disclosing his identity and with intent to annoy.'” The implications for anonymity on the web, in email correspondence, and in other Internet applications could be enormous, McCullagh says. Penalties include stiff fines and jail terms of up to two years (Jan. 9).
More: Orin Kerr at the Volokh Conspiracy says McCullagh is wrong to be so alarmed and that the actual effect of the law would be much narrower (see Ted’s post above). A key question raised in the Volokh comments is whether the bill will apply only to VOIP (internet-based telephone service) or have a broader reach than that. Other discussions worth reading: Concurring Opinions, Boing Boing.
Blawg Review #39 — and “best name” honors
Blawg Review #39, the carnival of law bloggers, is hosted this week at Bruce MacEwen’s Adam Smith Esq., which is an invaluable source for those interested in the economic aspects of law-firm practice. Calling me “ever-reliable”, he links to last week’s item on the Dallas restaurateur who sued over a bad review.
Speaking of Blawg Review, the anonymous organizer of that endeavor has announced the winners of “Blawg Awards 2005”, and Overlawyered is happy to have won for Best Name for a Legal Blog. Among those commenting: Patent Baristas and the naming-and-branding site WordLab.
Working overtime (or maybe not) for fees
The federal Fair Labor Standards Act, which governs overtime and other aspects of wage-and-hour workplace regulation, entitles prevailing plaintiffs’ lawyers to demand attorneys’ fees from defendants, but not vice versa; it’s a “one-way” fee-shift
Some attorneys who represent employers say plaintiffs attorneys are filing claims for small dollar amounts under the wage and hour provision of the federal law that require little litigation beyond filing a claim, then claiming fees sometimes in the tens of thousands of dollars. Another tactic, defense attorneys say, is dragging out the litigation to pad their fees.
“It’s a hijacking,” said Mark Cheskin, a defense-side labor and employment lawyer and partner at Hogan & Hartson in Miami. “There’s a whole cottage industry of plaintiff attorneys who are doing nothing but these cases.”
“It’s a volume practice,” said Paul Lopez, a partner at Tripp Scott in Fort Lauderdale. “They use the same forms [for every client] and are doing cut-and-paste jobs.”…
In a quickly settled case, the attorney fees generally seem like small potatoes to the employer, defense attorneys say, even though the fee may be 10 to 20 times the amount paid to the plaintiff.
However, claimants’ lawyers respond that business defendants often underrate the amount of time needed to prepare the cases. “‘They’re wrong, and there’s nothing out of control at all,’ said Donald Jaret, a Miami attorney with a substantial FLSA practice. ‘They always have complained, and they always will.'”
Lawyers say some judges have been policing fees more closely lately:
In 2003, U.S. District Judge Federico A. Moreno rejected Donald Jaret’s request for $16,000 in fees on a $315 claim that was settled weeks after the claim was filed.
In his order, Moreno wrote that the claim “shocks the conscience of the court. … This strategy of ‘shaking down’ defendants with nightmarishly expensive litigation in pursuit of attorney fees must not be rewarded.”
That case, entitled Goss v. Killian Oaks House of Learning, was cited last year by U.S. District Judge Kenneth Ryskamp in denying a lawyer’s fee request in a case against the Rag Shop of Hollywood, Fla. (Jessica M. Walker, “Are FLSA Suits Too-Lucrative Labors for Plaintiffs Attorneys?”, Miami Daily Business Review, Dec. 16). More on overtime and FLSA litigation: PoL, this site.
Introduce-yourself thread
In which regular readers (especially those who’ve been posting to the experimental new comments sections) are invited to introduce themselves.
“Wal-Mart ends food donations to charity”
Is the nation’s largest grocer being ignorant or overcautious? Or has it reckoned that even a “gross negligence” standard will not prevent it from being a target after some future incident of food poisoning?
Wal-Mart Stores, Inc., the nation’s largest food retailer, said Thursday it will no longer donate nearly-expired or expired food to local groups feeding the hungry….
Olan James, a Wal-Mart spokesman, said the policy, which applies to all 1,224 Wal-Marts, 1,929 Supercenters and 558 Sam’s Clubs, is an attempt to protect the corporation from liability in case someone who eats the donated food gets sick….
Ernie Brown, a spokesman for Sacramento’s Senior Gleaners, which received about 25,000 pounds of food in 2005 from Sam’s Club on Greenback Lane in Citrus Heights, said most food is fine to eat for days after the “sell-by” date.
He said Wal-Mart’s concerns about liability seem misplaced in light of the Good Samaritan Food Donation Act, a federal law passed in 1996 offering food donors wide-ranging protections from civil lawsuits or criminal prosecution. The law states that donors can be held liable only in instances of “gross negligence.”
“Lord, we get millions and millions of pounds from Raley’s and Bel-Air and Albertson’s, and they don’t have a problem understanding the law,” Brown said. “Why don’t Wal-Mart and Sam’s Club understand the law?”
The food will be thrown out instead. (Todd Milbourn, Sacramento Bee, Jan. 6). More: Dvorak Uncensored, Jan. 11.
Tales from the front
Which BigLaw firm’s London office featured a partner who (1) told his team he expected them to bill 7.5 hours the day of the July 7 Tube bombings and (2) refused to allow team members to attend the funeral of a partner who had recently left the firm? Gerry Riskin has the answer.
Colleagues to Pattis: knock it off
As readers may recall (Dec. 9), Connecticut attorney Norm Pattis has lately written a series of powerful commentaries at Crime and Federalism suggesting that some of his fellow plaintiff’s attorneys are too often tempted to take on the causes of vengeful, deluded or disturbed complainants, especially during “the periodic lull in cases of merit”; he further argued that society’s interest calls for strong measures against the filing of meritless cases. It seems, however, that these commentaries have not sat well with many of his colleagues. On Dec. 20 Pattis described one wave of reaction:
The other day, a newspaper called to ask for permission to run an old item. I granted permission, and now my email box is replete with messages from new readers, in this instance members of the plaintiff’s bar, not at all happy that I wrote about my sense that not all cases have merit.
And three days later (Dec. 23) he has further thoughts in response to being verbally pummeled on a listserv of the Connecticut Trial Lawyers Association:
…All I am saying is that a significant percentage of plaintiffs bring deep-seated psychological injury to their cases that is not caused by a defendant’s misconduct, and these clients transfer all their anger and disappointment onto the first available target, whether it be defendant or lawyer. I suspect any lawyer practicing more than a couple of years can draw this distinction with ease.
Was I suggesting that defendants are somehow devoid of the same sociopathy? Not at all. I suspect many defendants are disturbed as well. But there is a crucial difference — the defendant did not choose to be in court….
I haven’t lost the will and zeal to fight, far from it. But I do get to choose not to become more than the blunt instrument of those clients whose cases lack merit, and whose psyches bring nothing but hatred and rage to a courtroom.
Lawyer-promotion spam, cont’d
Jerry Pournelle of sci-fi fame (Oct. 11, scroll down) got an unsolicited email from an outfit called “National Association of Personal Injury Lawyers” offering a “limited-time, complimentary membership” allowing for a listing on its website http://www.napil.com as a nifty “method to get more personal injury clients”.
I could compare notes on the subject, since I got a (somewhat differently worded) email from the same outfit in October (sent to an email address which is available to website visitors, but which I don’t use to subscribe to anything; it receives a lot of spam). And I, too, can vouch with confidence that I never requested or invited email from NAPIL.
According to the email I got, “There is no Sign-up fee, no annual fee. You only pay a voluntary referral fee when we give you a lead and you settle the case and earn your fee. To comply with most State Bars’ prohibition against fee sharing, we have no mandatory fee sharing agreement. When you do pay us a fee, you will share fee with a lawyer.” In the “P.S.”, it said: “Our website www.napil.com is on the top on Yahoo and MSN” — not a very useful boast without any specification of which search term results in their being “on the top”.
More on spam promoting lawyers and lawsuits: Jan. 5, 2005, Mar. 29-31, 2002.
P.S.: Well, that didn’t take long. This morning (Monday), less than a day after posting the item, I got an email from NAPIL, by its appearance sent to a wide audience rather than to me alone, adding specificity to the “at the top” boast. It says: “www.napil.com is on the top of Yahoo search. If you search for the term Personal Injury Lawyers on Yahoo, NAPIL is the Number One Result.” This claim checked out as true, as a visit to Yahoo confirmed. It goes on to claim: “We are also on the top on MSN.” When I visited MSN, I found that NAPIL turned up on the first page of results (at #9) when I entered the search phrase “personal injury lawyers” with quotation marks around it, but did not turn up on the first page when I omitted the quotation marks.
Update: Atul Gawande on “The Malpractice Mess”
As mentioned Nov. 22, the New Yorker recently published an article on the medical liability morass by its medicine correspondent, Dr. Atul Gawande. The piece still isn’t online (sorry) but Common Good has posted a summary of the article with some quotes, as well as a link to coverage in the Dec. 20 Medical Post.