I’d like to make a correction. In my earlier post, I suggested that Milberg Weiss Justice Fellow Kia Franklin thought that Judge Roy Pearson’s $67 million lawsuit over a pair of pants was frivolous. I appear to have been mistaken in attributing such a common-sense view to her. Franklin has a lengthy post protesting that, while she thinks Pearson’s lawsuit is “ridiculous” and “crazy” (she has also called it “obscene”), she does not think it is “frivolous.” We regret the error.
But it is a useful illustration: when those who oppose civil justice reform say they don’t think frivolous litigation is a problem, it is because they define “frivolous litigation” so narrowly that even Roy Pearson’s lawsuit is not frivolous in their eyes. Well, that’s one way to make problems go away, by using doublespeak or narrow technical legal definitions to pretend they don’t exist instead of suggesting that there is a problem with the narrow technical legal definition.
A few other minor points:
1) For some reason, Franklin links to a post I wrote that says that it is inappropriate to judge attorneys by skin color, and criticizing the racism of law firms and clients who say otherwise, and claims that it is evidence that Overlawyered does not care about racial justice. It’s remarkably ironic that my position, taken directly from the words of Dr. Martin Luther King, Jr. (“I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character”) is being criticized by a thinktank named after other words of King, and remarkably sad at the same time that King’s ideals have been twisted so that those who fight in his name stand in direct opposition to his dream.
2) Franklin repeats her statistical misrepresentation and falsely claims “it is consistent with the data.” Whether this is because she is being dishonest or because she hasn’t read the Public Citizen study she’s quoting is uncertain. And as we have previously noted, Public Citizen got its math wrong, yet Franklin continues to repeat the false statistic without defending or correcting it.
3) Is Judge Pearson poor? Well, when he filed his suit, he was unemployed, had an empty bank account (according to the court opinion on his divorce) and did not own a car. He is about to be unemployed again. Perhaps it was an exaggeration to call him poor, but he’s certainly not wealthy. The question remains why Franklin and ATLA feel it necessary to criticize someone delusional like Pearson when they are ignoring wealthier and more powerful attorneys like Tab Turner who bring even more ridiculous and crazy and obscene lawsuits that affect more than a single dry cleaner.
4) Still missing from Franklin’s critique of the Pearson suit: whether she thinks the legal system is working with such claims where an immigrant family would have been forced to pay $12,000 in extortion to a more rational attorney, and what (if any) reforms are merited.
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Somehow my words keep being distorted:
1) “Franklin… does not think [the pants case] is “frivolous.” We regret the error.”
Having studied the law, and as we are discussing the law, we must acknowledge that some concepts are defined differently (yes, often more narrowly) within the profession. I discussed how the legal and colloquial usages of the term “frivolous” are different. If I were to say, “She almost died laughing,” unless I was wearing surgical clothing and standing in the E.R. talking to a bunch of doctors, people would pretty much know I didn’t mean that someone literally almost died. When we talk about the law in the public space these distinctions aren’t always so clear.
Is the lawsuit absolutely ridiculous? Yes—that’s the consensus. But it survived the legal threshold for merit. Should we scrap the whole system and impose greater restrictions on legitimately wronged individuals, while not holding big businesses equally accountable? Absolutely not. Pearson promised to follow high standards of professional conduct, and he and any lawyer who would allow such a lawsuit to get to this point should be held to these. Perhaps he thinks he has.
2) Martin Luther King, Jr.
Ted’s distortion of my words is forgivable. But to mischaracterize Dr. King’s words to imply that diversity initiatives are “in direct opposition to his dream”? Ridiculous and more than slightly repulsive.
MLK probably wouldn’t have stood for MLK Harbor hospital’s gross negligence in its treatment of Edith Isabel Rodriguez, and would have staunchly opposed the connection between his name and the hospital. However, under tort reform, Rodriguez’s family would have to go to a biased health court, run by health industry insiders and their chums, rather than go to a court of law and have a jury of citizens decide their case against the hospital.
3) The stats
My statements were based on Public Citizen’s study and on its summary of the study. Ted contests the validity of the study’s data. That is his right, as it is his right to cite to other studies like the PRI “jackpot justice” despite noted deficiencies in that data. Public Citizen has produced reliable and independent research that I as one person can’t duplicate. I do thank Ted for providing an alternate view and bringing light to any questions he thinks people should have about it. But statistics aside, the truth remains that individual lawsuits are being misused by tort deformers as “proof” of the urban legend of a “clogged” court system. This is despite the fact that most injured people don’t even end up suing, even when they rightly could. Corporations, however, can sue whenever they want because they can write it off in their taxes.
4) Pearson vs. Tab Turner
I’m not spending more than 3 sentences comparing a patently abusive lawsuit to one in which there’s a true question of fact—whether a 70% rollover rate is really safe, when rollovers pose serious public safety issues (they result in terribly violent injuries like snapped spinal cords and account for a quarter of all severe car crash injuries). Especially when the claimants haven’t even named actual damages yet, and will likely base it on factors that are 1000 times more reasonable than Pearson’s pants damages. Oh, that’s just two sentences.
5) “Still missing from Franklin’s critique of the Pearson suit: whether she thinks the legal system is working with such claims where an immigrant family would have been forced to pay $12,000 in extortion to a more rational attorney, and what (if any) reforms are merited.”
I think a more rational attorney would have taken the offer to reimburse the customer for the actual costs of the pants, if they in fact were actually lost. Is this lawsuit fair to the Chungs? No it’s not. I am not naïve. Indeed, my work is built upon the understanding that unfair verdicts happen. Isn’t yours, Ted? The difference is that I don’t think this is reason to totally hack away at our legal protections. Perhaps sanctions against Pearson, or disciplinary action, or a number of alternatives would be good. As to specific reforms, that’s a great question to continue to ask ourselves as we engage in this type of dialogue.
1) Kia defends her position by noting that the Pearson case “satisfied the legal threshhold for merit.” Which, once again, proves my point: the legal threshhold for merit is plainly too low, and anti-reformers are just happy with keeping it that way, even though it permits extortionate lawsuits like Pearson’s. This has nothing to do with promoting justice, and everything to do with helping trial lawyers extract more wealth from honest working Americans.
2) Kia changes the subject, apparently unable to defend her earlier attack on me for defending Martin Luther King’s principle of nondiscrimination. (I have nothing against diversity initiatives: I promoted diversity at my last law firm, by encouraging recruiting outside the top fourteen. Like Martin Luther King, however, I object to judging people by the color of their skin.)
The non sequitur is also dishonest: what health court would find MLK Harbor’s care of Rodriguez appropriate? Not a single reform, proposed or passed, would prevent Rodriguez’s family from recovering their economic damages for gross negligence, and Franklin cannot identify any. (It can’t be possible, can it, that Franklin is unaware that the Drum Major Institute is named after a MLK quote, and she thought I was referring to the hospital?)
3) Franklin is dishonest again. I do not contest the validity of the data. I contest Public Citizen’s dishonest characterization of the data, as anyone who read my critique knows, and as anyone capable of seventh-grade math can verify. Franklin again fails to defend it, and instead tries to change the subject, and again with a false accusation against me (as well as PRI, which can defend itself, and has done so). Note also how, instead of addressing the real issues, she invents a strawman that I claim the court system is “clogged.” I defy her to find a single example where I say that outside of the context of asbestos dockets (where 90% or more of the plaintiffs have suffered no injury).
4) Franklin’s dishonesty continues here, when she claims the Ford SUV has a “70% rollover rate.” This is obviously a completely invented number: it is not the case that 70% of Fords have rolled over.
5) Franklin again changes the subject from the ability of lawyers to use the system to extort innocent defendants to “unfair verdicts” when there has not been a verdict in the Pearson case, and Pearson could have walked away with a substantial profit without ever risking a verdict.
She proposes disciplinary sanctions on Pearson. That’s certainly a start.
But, again, what is the distinguishing principle by which Pearson gets disbarred and Tab Turner becomes a millionaire using the same extortionate tactics of meritless lawsuits seeking gigantic damages? Is the only difference that Pearson is too irrational to accept the $12,000 settlement offer for a pair of pants? That hardly seems to create the right legal incentives, when one punishes the extortionists too foolish to be successful at it, while leaving the successful extortionists to their stolen riches.
We’ll let Franklin troll this time. Future trolling will not be permitted in the comments.
I would encourage readers to visit tortdeform if they have further questions about my stance on the rights of honest working Americans, most of whom would find themselves shut away from the legal system if it were up to tort “reformers.”
Obviously, I know the origins of my organization’s name. Perhaps Mr. Frank had trouble with my bigger point–that if MLK were against something he would be against distorting his aspiration for a discrimination-free society into the conclusion that diversity efforts (and holding people accountable for making diversity a priority) are discriminatory. That Frank would construe such a thing as “judging people by the color of their skin” is problematic and indicates a fundamental difference in our perspectives–something that I won’t attempt to change. (By the way, Mr. Frank, there are plenty of people of color in the top fourteen law schools as well.)
Interestingly, the fact that I have a different viewpoint is being construed as a reflection of dishonesty.
“Somehow my words keep being distorted:”
Yes, by you, after the fact, as you try to twist your way out of the BS you have spewed.
Anyone who is even reasonably informed can see through most of your points at a glance; Ted’s thorough documentation of your dishonesty just makes it all the easier.
Once again, Ms. Franklin seems to think that the only way to achieve diversity is to judge people on the basis of the color of their skin. (And once again, she confuses opposition to quotas with opposition to diversity, when it’s possible to achieve diversity without illegal and immoral quotas.) I guess I’m not smart enough to engage in the doublethink that propounding an illegal policy that is precisely the opposite of what King said he aspired to is somehow working for King’s ideals.
Franklin ignores all of my other refutations.
As Daniel Patrick Moynihan once said, you are entitled to your own opinion, but you are not entitled to your own facts. And it is that distortion of the truth (such as the fictional “70% rollover rate”) and the refusal to engage your opponents’ actual arguments instead of strawmen that results in the recognition of your dishonesty.
“Once again, Ms. Franklin seems to think that the only way to achieve diversity is to judge people on the basis of the color of their skin.”
Please quote me on that or kindly stop putting words in my mouth. That’s dishonest. It is not dishonest, however, for me to state my opinion and the basis for it.
Ms. Franklin: I said that I opposed judging people on the color of their skin—and that is all that I said.
In response, you said that that statement meant I opposed diversity.
So, are you lying now, or were you lying then?