Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for 2007

Sen. Edwards’ record (and some kind words)

Bill Dyer (Dec. 30), following up on Stephen Bainbridge (Dec. 28), has some thoughts about “whether Edwards’ career as a lawyer who primarily represented plaintiffs in personal injury cases is, by itself, a factor that ought to cut against his being President.” Along the way, he has some kind things to say about the authors of this site, which are much appreciated.

The question of what sort of pro bono work Sen. Edwards did during his legal career has also been getting attention recently (as in this guest post at Andrew Sullivan’s). For our take on that, see Jul. 27, 2004.

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“Rollover Economics: Arbitrary and Capricious Product Liability Regimes”

My latest Liability Outlook for AEI is about the Ford Explorer rollover litigation and what it says about products liability litigation in the US in general:

It went generally unnoticed last November when the California Supreme Court refused to review an intermediate court’s decision in Buell-Wilson v. Ford Motor Co. But then again, it went generally unnoticed when a jury awarded an arbitrary $368 million in damages in that case, when the trial judge reduced that verdict to an arbitrary $150 million judgment, and when an intermediate appellate court reduced that figure to an arbitrary $82.6 million (which, with interest, works out to over $100 million). Products liability verdicts have become so run-of-the-mill that even nine-digit verdicts and their aftermath receive only local or specialty press coverage, with cursory national coverage. But Buell-Wilson demonstrates much that is wrong with the current liability regime, including the fact that the media is so jaded by litigation abuse that a $368 million verdict is barely newsworthy.

I have a related letter to the editor in the Jan. 1 Legal Times. See also POL Dec. 13, OL Dec. 12, OL Jun. 3, 2004.

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An over-diagnosis epidemic?

“The larger threat posed by American medicine is that more and more of us are being drawn into the system not because of an epidemic of disease, but because of an epidemic of diagnoses. … Medico-legal concerns also drive the epidemic. While failing to make a diagnosis can result in lawsuits, there are no corresponding penalties for overdiagnosis. Thus, the path of least resistance for clinicians is to diagnose liberally — even when we wonder if doing so really helps our patients.” (H. Gilbert Welch, Lisa Schwartz and Steven Woloshin, “What’s Making Us Sick Is an Epidemic of Diagnoses”, New York Times, Jan. 2).

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Wacky Warnings 2007 on Today Show

Bob Dorigo Jones sends us the following note:

Happy New Year!

This is a quick note to let you know that on January 4, Warner Books officially releases Remove Child Before Folding, the 101 Stupidest, Silliest and Wackiest Warning Labels Ever, a new book based on M-LAW’s annual Wacky Warning Label Contest. Kicking off the media coverage will be NBC’s Today Show which is scheduled to air a segment Thursday morning at 7:50am Eastern Time. Sorry for the short notice.

According to the Today Show schedule, which is always subject to change, Matt Lauer and the rest of the cast will discuss the book and try to guess which warning labels go with the various products. Not coincidentally, M-LAW also announces the winners of our 10th annual Wacky Warning Label Contest tomorrow.

Of course, this is fun stuff, but we do this for a serious reason, too — to get America talking about how excessive litigation is changing our culture in ways that aren’t so good for our families and communities. Since its inception, M-LAW’s wacky label project has been quoted on the floor of Congress, in speeches by CEO’s of Fortune 100 companies, and by authors of numerous books as proof that common sense legal reform is greatly needed. Remove Child Before Folding is available at all major bookstores and all royalties go to fund efforts to restore fairness and reliability to the courts.

Best wishes for a great 2007!

Bob
P.S. Tomorrow morning, click on the following link to see which label was voted the wackiest of 2007 — http://wackywarnings.com

For earlier editions of the Wacky Warning winners, see Jan. 6 and links therein; note also a June complaint that a wacky warning on self-heating coffee wasn’t sufficiently idiot-proof.

Update: The 2007 winner was “Do not put any person in this washer.” I much preferred runners up “Please do not use this [Yellow Pages] directory while operationg a moving vehicle” and “Don’t try to dry your phone in a microwave oven.”

January 4 roundup

Usually it’s Ted who posts these, but I don’t see why he should have all the fun:

  • Latest ADA test-accommodation suit: law school hopeful with attention deficit disorder demands extra time on LSAT [Legal Intelligencer]

  • John Stossel on Fairfax County (Va.) regulations against donating home-cooked food to the homeless, and on the controversy over Arizona’s Heart Attack Grill

  • More odd consequences of HIPAA, the federal medical privacy law [Marin Independent Journal via Kevin MD; more here, here]

  • UK paternalism watch: new ad rules officially label cheese as junk food; breast milk would be, too, if it were covered [Telegraph; Birmingham Post]; schoolgirl arrested on racial charges after asking to study with English speakers [Daily Mail via Boortz]; brothers charged with animal cruelty for letting their dog get too fat [Nobody’s Business]

  • Stanford’s Securities Class Action Clearinghouse reports impressive 38 percent drop in investor lawsuit filings between 2005 and 2006, with backdating options suits not a tidal wave after all [The Recorder/Lattman]

  • Ohio televangelist/faith healer sued by family after allegedly advising her cancer-stricken brother to rely on prayer [FoxNews]

  • Legislators in Alberta, Canada, pass law enabling disabled girl to sue her mom for prenatal injuries; it’s to tap an insurance policy, so it must be okay [The Star]

  • California toughens its law requiring managers to undergo anti-harassment training, trial lawyers could benefit [NLJ]

  • Family land dispute in Sardinia drags on for 46 years in Italian courts; “nothing exceptional” about that, says one lawyer [Telegraph]

  • “For me, conservatism was about realism and reason.” [Heather Mac Donald interviewed about being a secularist]

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Type I errors and Type II errors

Deep in a comment thread on a blog that I shouldn’t be wasting time reading, trial lawyer Lee Tilson writes as an argument against reform “Our imperative should be to reduce medical errors.”

But there’s a very easy way to reduce medical errors: abolish the practice of medicine, and doctors won’t commit medical errors any more.

That clearly isn’t an improvement over the status quo, and this illustrates the flaw in Tilson’s argument: he’s asking the legal system to solve the wrong problem. Better for a legal system with rules that effectively tolerate some more Type I errors if by doing so eliminates even more of the Type II errors from doctors deterred from practicing at all. Society should be happy with a tradeoff of more doctors for somewhat more medical errors if the net result is better medical care for all. At what level of malpractice liability will medical care be optimized? The data indicates the needle has moved too far in favor of liability: reducing liability (say, through caps) improves health-care outcomes such as infant mortality. The deterrent effect of outsized liability on practice more than outweighs the deterrent effect of liability on malpractice. (As I’ve noted at Point of Law, even serious academics make this mistake.)

There are ways to achieve reform without Type I/Type II tradeoffs. Improving the accuracy of the justice system would hypothetically reduce both Type I and Type II errors; this is the principle behind the Common Good health courts proposal. That the trial bar fights so hard against even so much as establishing such courts on an pilot basis shows how much they really care about “medical errors” as opposed to their own pockets.

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Best of 2006: November

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Ten-best lists

Christopher Taylor, at Word Around the Net, has nominated his choices for top ten outrageous lawsuits of 2006, giving us an appreciated acknowledgment along the way (Jan. 2). And I have a few critical things to say at Point of Law (Jan. 3) about the curiously narrow selection process by which some legal analysts nominate Top Threats To Civil Liberties.

His “day in court”, eleven years’ worth

Atlanta: “The term ‘litigious’ is frequently tossed about in legal circles, but on Wednesday its apparent embodiment stood in shackles before a Fulton County, Ga., judge who patiently heard him out before sending him back to the jail where he had spent the night.” 88-year-old attorney Moreton Rolleston, Jr., “who in October was feted for 50 years as a member of the Georgia Bar” and who once represented himself as the owner of the Heart of Atlanta motel in a landmark Supreme Court discrimination case, has been battling for 11 years “to avoid paying a $5.2 million judgment from a 1995 malpractice case brought by the estate of a former client”. “Rolleston has sued the [late client’s estate and lawyer], he sued the sheriffs of Fulton and Glynn counties, he sued the purchasers of properties sold to pay the judgment — he even sued the original trial judge, Isaac Jenrette.” “No one has been given more opportunity to have his day in court; and day, and day, and day, at great expense to all,” said the opposing attorney, Shelby A. Outlaw. (Greg Land, “In Shackles, 88-Year-Old Lawyer Argues His Case — and Loses Again”, Fulton County Daily Report, Dec. 11).

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