Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for February, 2008

Don’t IX

Another bunch of things not to do if you’re a member of the legal profession.

  • Don’t get caught pursuing forged fen-phen claims. (Robert Arledge, Vicksburg, Mississippi, sentenced to 6.5 years, the only lawyer to date to be sentenced in a much larger fen-phen scandal.) [ABA Journal]
  • Don’t try to dissuade a witness from testifying at a deposition. (Cleary Gottlieb, which said it would appeal the judge’s order of sanctions.) [WSJ Law Blog]
  • Don’t inflate your GPA and include fake awards on your resume. (Gregory Haun, DC, recommended for suspension, resigned his six-digit BigLaw associate job.) [Legal Times]
  • Don’t end your jury service by casting a vote to break a deadlock and then sign a statement drafted by the plaintiffs’ attorney asking for a new trial saying that you did so so you can return to work. (California bar has recommended disbarment for Francis Fahy.) [ABA Journal; Recorder ($); Law.com ($)]
  • Don’t steal money from your clients by forging their signatures on insurance company releases to get their settlement money. (Richard Boder, New York, caught as part of a larger scandal involving the illegal use of paid runners to bribe hospital employees about auto accident injuries, sentenced to a year in prison.) [NY Law Journal]
  • Don’t read Maxim in the courtroom. (Todd Paris, held in contempt by North Carolina judge.) [WSJ Law Blog]
  • Don’t have an affair with a judge you’re practicing in front of, or vice versa. (Federal Way, WA, Municipal Court judge Colleen Hartl resigned after bragging about an affair with public defender Sean Cecil, who still has 5 Avvo stars for professional conduct, but has been the subject of a formal complaint to the bar.) [AP/Post-Intelligencer; Federal Way News; Lat]

(Earlier: Nov. 5, etc.)

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Scruggs wiretap transcripts, cont’d

Alan Lange and commenters are jumping in to excerpt some of the more damning excerpts (YallPolitics Feb. 19; more). And in the department of curious wordings, from the Jackson Clarion Ledger: “Circuit Judge Bobby DeLaughter has told federal authorities he became aware in 2006 that some people were trying to improperly influence him to rule in favor of lawyer Dickie Scruggs in a Hinds County legal-fees dispute. DeLaughter told authorities he didn’t know whether he was influenced [emphasis added] but says he’s followed the law in all his rulings.” (Jerry Mitchell, “Judge: Efforts to sway made”, Feb. 24).

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February 23 roundup

  • Easterbrook: “One who misuses litigation to obtain money to which he is not entitled is hardly in a position to insist that the court now proceed to address his legitimate claims, if any there are…. Plaintiffs have behaved like a pack of weasels and can’t expect any part of their tale be believed.” [Ridge Chrysler v. Daimler Chrysler via Decision of the Day]
  • Retail stores and their lawyers find sending scare letters with implausible threats of litigation against accused shoplifters mildly profitable. [WSJ]
  • Kentucky exploring ways to reform mass-tort litigation in wake of fen-phen scandal. [Mass Tort Prof; Torts Prof; AP/Herald-Dispatch; earlier: Frank @ American]
  • After Posner opinion, expert should be looking for other lines of work. [Kirkendall; Emerald Investments v. Allmerica Financial Life Insurance & Annuity]
  • Judge reduces jury verdict in Premarin & Prempro case to “only” $58 million. And I still haven’t seen anyone explain why it makes sense for a judge to decide damages awards were “the result of passion and prejudice,” but uphold a liability finding from the same impassioned and prejudiced jury. Wyeth will appeal. [W$J via Burch; AP/Business Week]
  • Judge lets lawyers get to private MySpace and Facebook postings. [OnPoint; also Feb. 19]
  • Nanny staters’ implausible case for regulating salt. [Sara Wexler @ American; earlier: Nov. 2002]
  • Doctor: usually it’s cheaper to pay than to go to court. [GNIF BrainBlogger]
  • Trial lawyers in Colorado move to eviscerate non-economic damages cap in malpractice cases [Rocky Mountain News]
  • Bonin: don’t regulate free speech on the Internet in the name of “campaign finance” [Philadelphia Inquirer]
  • “Executives face greater risks—but investors are no safer.” [City Journal]
  • Professors discuss adverse ripple effects from law school affirmative action without mentioning affirmative action. Paging Richard Sander. Note also the absence of “disparate impact” from the discussion. [PrawfsBlawg; Blackprof]
  • ATL commenters debate my American piece on Edwards. [Above the Law]

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$25 million for yanking hospital privileges

On Feb. 7 a jury found the Charleston Area Medical Center in West Virginia had wrongly revoked the privileges of vascular surgeon R. E. Hamrick, Jr. over a financial dispute. It awarded Hamrick $25 million, including $20 million in punitive damages; the dispute arose over Hamrick’s desire to set up a self-insurance fund against professional liability as opposed to purchasing outside insurance. CAMC has retreated from initial talk of pay freezes for staff, but it is unclear where it will come up with the money — about 4 percent of its annual budget — in ways that have no impact on patients: “‘Any time you have to spend $15 million, how can it not affect the way we care for people?’ asked Dr. Tom Bowden, who also serves on CAMC’s Board of Trustees.” However, expert witness Jonathan Cunitz of Westport, Ct., who testified for the plaintiffs on punitive damages, told the Daily Mail that patients and employees “shouldn’t be concerned for a second” about cutbacks because the nonprofit community hospital could just pull the money from the magic rainbow wishing well could cover the punitive damage award “just out of the money generated by Hamrick’s surgeries,” in the newspaper’s phrasing. It sounds almost as if hospital revenues from surgery constitute pure gravy and do not involve any correlative expenditures. The hospital’s CEO notes that the damage award “was higher than the $15 million CAMC spent to purchase the former Putnam General Hospital in 2006.” (Justin D. Anderson, “Doctor responds to colleague’s lawsuit win against CAMC”, Charleston Daily Mail, Feb. 12; Eric Eyre, Charleston Gazette, Feb. 13, Feb. 20, Feb. 21; Chris Dickerson, West Virginia Record, Feb. 7).

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The Patent Reform Act of 2007

My latest Liability Outlook is on the Patent Reform Act of 2007:

Despite some in the media calling patent reform dead, on January 24, 2008, the Senate placed S. 1145, the Patent Reform Act of 2007, on the general calendar. The next few weeks will be critical to the legislation, which the House passed in September. Although much of the discussion has focused on the different perspectives and concerns that the high tech and the biotech/pharma industries have about the legislation, the fact remains that the patent litigation system is broken. Congress should make every effort to fix it by writing into this legislation reasonable formulas for damage awards and venue rules that discourage forum-shopping. …

Affiliates of Erich Spangenberg’s Plutus IP have sued 476 different defendants in 42 lawsuits. The vast majority of those lawsuits allege infringements of patents that Plutus IP purchased for $1,000. The use of invalid patents in litigation is more than theoretical. Philip Jackson sued his attorneys, Chicago plaintiffs firm Niro, Scavone, Haller & Niro, for malpractice after his $12.1 million jury verdict against Glenayre Electronics Inc. was reduced to under $3 million; Niro challenged the malpractice suit by claiming that th e patent Jackson had successfully enforced was invalid. In 2006, approximately 6,000 defendants were sued in 2,800 patent cases; in 2007, the six thousand mark was reached in early October, implying a 30 percent increase in patent litigation in a single year. Such litigation stifles substantial technological innovation. Patent trolls claim to block entire fields, and one cannot hope to innovate in these areas without the financial capital to handle the threat of patent litigation. IBM has 370 corporate patent attorneys, not just to avoid the pitfalls of infringement, but to create a patent portfolio that can provide counterclaims (or cross-licensing opportunities) if a commercial entity were to sue them for infringement. Since the late 1990s, patent litigation costs have outstripped patent profits.

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“Swastikas, kangaroos, cartoon squirrels”

Perennial Overlawyered favorite Jack Thompson may find that his doodles, or supplementary art, or whatever, on court filings are an expensive matter, as the Florida Supreme Court continues to consider disciplinary action against him. Aside from the extraneous picture matter, which includes images of “swastikas, kangaroos in court, a reproduced dollar bill, cartoon squirrels, Paul Simon, Paul Newman, Ray Charles, a handprint with the word ‘slap’ written under it, Bar Governor Benedict P. Kuehne, a baby, Ed Bradley, Jack Nicholson, Justice Clarence Thomas, Julius Caesar, monkeys, a house of cards,” and so forth, Thompson, known for his crusades against violence and sex in videogames, is accused of engaging in constant filings that are “repetitive, frivolous and insult the integrity of the court,” and faces a possible order that would bar him from filing actions unless signed by another Florida bar member. Thompson rejects the charges, saying, “I have a right to file anything I want with the court.” (Alana Roberts, “Anti-Porn Crusader May Face Sanctions for ‘Meritless Filings'”, Daily Business Review, Feb. 22).

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Med-mal in the Upper Midwest

The lowest medical malpractice insurance rates are found in Minnesota, Wisconsin, Iowa and the Dakotas. Why is that? Probably not because doctors there have managed to achieve anything resembling error-free practice; and probably not because the five states, taken as a whole, are distinguished by any unusually pro-defendant set of tort laws. MedInnovationBlog takes up the question here and here, and speaks with a mutual insurer executive in search of explanations, which may include (among others) a “culture of collegiality among doctors and society as a whole”, a hard line against doubtful claims, and a paucity of giant verdicts of the John Edwards variety. (cross-posted from Point of Law).

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