Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for December, 2008

All Revolutions are Plotted in Secret

Peter Reiner of the Neuroethics & Law Blog points to the impending arrival of the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders, or as it will be commonly known, the DSM-V.  DSM, in its various editions, is generally treated as the bible of psychiatry, providing diagnostic criteria for a host of mental maladies from the common, such as depression, to the bizarre, such as trichotillomania.

Readers of this site may know that the DSM is relevant to a number of fields of legal practice, including criminal law, tort practice, workers compensation, and increasingly employment law.  If nothing else DSM often provides fodder for cross examination of experts, but in some cases it interacts with the law more directly.  For instance, whether a person is psychiatrically “disabled” within the meaning of the Americans With Disabilities Act, or an insurance policy, may turn on whether that person’s problems can be summarized through a DSM diagnosis.  Revisions to past editions of DSM have even had social and political ramifications in the culture at large.  Arguably the removal of “homosexuality” as a form of mental illness in the 1970s contributed, in its small way, to greater acceptance of gay people in American culture.

Like Dr. Reiner, I find one aspect of the revision process troubling.  It’s being conducted in secret, and the revisionists are being held by the American Psychiatric Association to confidentiality agreements.  The APA has justified this a couple of grounds: first that it allows the committee to work undistracted by public comment from fellow scientists; and second that it prevents members from accepting outside work, such as casebook writing and other assignments, with an eye toward money.  After all, “The Doctor Who Wrote the Book On Binge Eating” could make a killing on the Oprah Winfrey Show.

While I’m not a scientist, the secrecy does strike me as bad science, and bad policy.  I’d never argue that laypeople, for instance lawyers, should have their comments considered by the APA, but there are many, many psychiatrists, non-psychiatrist MDs, scientists from other disciplines, and psychologists who could provide valuable criticism or validation of the work before it’s plopped onto the public.  While I’m also sure that the drafters are ethical, experts of the highest order, and would never commit misconduct, stranger things have happened.  And there may even be a few laypeople who have thoughts that might be helpful.  Taking homosexuality as an example, there are many people who have non-disabling, non-criminal sexual hangups who might have useful opinions about the fact that “sexual fetishes” are still classified as a form of mental illness.

Make no mistake, the DSM-V will change more than the practice of psychiatry, in ways subtle and profound.  Whether the secrecy with which it’s being drafted will contribute to that change is something we won’t know, until the cat is already out of the bag.

Edit: 12/24/2008 Adam Kolber was kind enough to point out that I had attributed the Neuroethics post to him, when in fact its author is Peter Reiner.  I have edited this post to reflect that.

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Cheerleading: Serious Business

Making a federal case out of petty politics in high school cheerleading:  Where else but Texas?

The mother of a former Creekview High School cheerleader has filed a federal lawsuit against Carrollton-Farmers Branch schools, arguing the district did not sufficiently discipline cheerleaders who she says bullied her daughter.

The lawsuit, brought by Liz Laningham, argues that the district discriminated against her daughter and “turned a blind eye” to the harassment. The lawsuit could result in a jury trial.

So far as I can tell from the linked story, the main element of damages appears to be that Liz Laningham’s daughter did not make the cheerleading squad in her senior year, after being a member in her junior year.  And there are the usual allegations of Facebook frippery, rumors and innuendos within the team, biased judging during senior year tryouts, etc. etc.

What I can’t tell from this Dallas Morning News story is what possible basis Liz Laningham’s lawyer could have for bringing this action in federal court.  While various civil rights acts prohibit discrimination on the basis of race, religion, disability, etc., none of those are named as putative grounds for the suit.  As for sex and age discrimination, presumably the victim and her harassers are all young women.  Does Title IX prohibit girls from being girls?

And does any girl, no matter how spoiled and entitled her mother has made her, have a right to lead cheers?

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Drum Major Institute “Eye on the Right” and civil Gideon

Well, I have to be encouraged that, when confronted with my argument against civil Gideon, this was the best the Drum Major Institute could come up with to respond (it doesn’t quite rise to the level of a rebuttal).  Compare and contrast the arguments I actually made–and the reasoning given for my conclusions–with the characterizations in the DMI report, and then ask yourself why one of organizations leading the fight for civil Gideon doesn’t dare engage those arguments.

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Asleep at the Scalpel?

Readers interested in medical liability issues, or health care in general, may find Kevin MD’s thoughts on the issue of medical residents and sleep to be of interest.  His thoughts are particularly useful because they’re counterintuitive.

Anyone who attended medical school before 2003 (when real restrictions on resident working hours were put in place), or just hung out with medical students and young doctors as I did (the nurses who attended their parties were far more, ahem, interesting than whatshername from Criminal Procedure) can tell stories about the brutal, seemingly insane hours that students and most especially residents were forced to work in order to move on in the world.  20 hour shifts weren’t unheard of, nor were possibly exaggerated tales of shifts in excess of 36 hours.  Truck drivers aren’t allowed to work the hours that residents used to and still do work, for good reason.  The hour restrictions, we were told, would or might result in a marked improvement in patient care.

Moreover, anyone who has brought or defended medical malpractice cases can tell anecdotal horror stories of the resident who added a zero to the prescription dosage, or cut a few millimeters too deep.  Some lawyers have gotten very rich spinning such stories for juries.

And yet, and yet … There’s no empirical evidence (to date) that the restrictions on resident hours have produced significant improvement in patient outcomes.  Nor is there empirical evidence that patient care suffers as a result of more frequent “doctor turnover” as one resident passes care to another who is unfamiliar with the patient’s history, but Kevin MD makes a persuasive case that it has.  As for the impact on medical costs of employing additional doctors to cover patients, that’s indisputable, at least if one doesn’t take litigation expenses into account.

Note that I don’t agree with Kevin MD, though my evidence, like his, is mostly anecdotal.  My longest experience without sleep was DJ’ing at a college radio station for 40 consecutive hours, and I had to call a friend (oddly enough, a medical resident) to drive me home and pour me into bed.  On the other hand, I’m pretty sure my second longest experience without sleep was just before my first argument before an appellate court.  I won the argument handily, but I slept well the night afterward.

Anecdotal, non-empirical comments from doctors and nurses who read Overlawyered would be particularly welcome here.

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Microblog 2008-12-22

Found here and there on the web, some matters on topic, some not:

This will have to be a short microblog, due to impending depositions, but it’s better than no microblog at all.

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Hokey Religions and Ancient Weapons are No Match for a Good Blaster at Your Side, Kid

Aspiring Jedi in the United Kingdom are out of luck this holiday season (assuming that Jedi have an analogue to Christmas), as the Woolworth’s retail chain, still a going concern over there, has restricted light sabers for purchase by adults only.  The store’s fear?  The Star Wars themed toys might be mistaken for firearms.

“A toy”                                                                     “An automatic pistol”

While even firearms opponents in the UK concede this decision is over the top, is it more appropriate to blame retailers, who may suffer liability in the event that a child was, I don’t know, injured because some fool mistook a light saber for a real firearm, or the activists and Labour government who have created laws that make such liability a real worry?  After all, the chain, like most merchants, presumably weighed its own risks, and found profits from sale of toy light sabers wanting in the balance.

You’re on your own, kid.

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Marc Dann’s “Where Are They Now?” Moment

Overlawyered readers may well recall the travails of disgraced former Ohio Attorney General Marc Dann.  Dann dropped off the radar earlier this year after he was driven from office amid allegations of sexual harassment and workplace affairs within his office.  Before stepping down, Dann touched off a brief constitutional crisis in Ohio, similar to what Illinois is now experiencing thanks to Rod Blagojevich.

Now Dann is back in the news, with a less sexy scandal involving campaign finance expenditures:

Former Ohio Attorney General Marc Dann used his campaign account to bankroll home repairs and family vacations, according to a newspaper review of state investigative reports.

Interestingly, beyond the expected “lies all lies!” defense, Dann responds that while he didn’t do it, if he did do it, he did it on the advice of counsel:

“The allegations that have been made in these complaints are either false or they lack a basis in law,” Dann said. “We operated the campaign committee lawfully, and all the expenditures were made with the advice of counsel and were appropriate.”

It would be nice to know which counsel advised the former attorney general that home repairs and family vacations were appropriate campaign expenditures.  Assuming that the counsel wasn’t Marc Dann.

Via Instapundit, who observes that the AP’s treatment of this story leaves the reader puzzled as to Dann’s party identity.  Perhaps Marc Dann was an independent.

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A New Category for Mark T. Sandoval?

An update to last week’s post on the case of the Texas judge’s drunk driving daughter: Mark Bennett of Defending People, who has already dug deeply into this matter, has evidently replaced his shovel with an oil drill.  He’s struck a gusher of facts about Mark T. Sandoval, the lawyer who brought this frivolous case.

Among other things, Defending People has found multiple sanctions for serious ethical violations, multiple suspensions, a jailing for lying to a judge, garnishment of fees for unpaid federal tax liens, and other lapses for which Sandoval has not (yet?) been sanctioned.

Perhaps the most bothersome aspect of this case is that Sandoval appears to earn a substantial portion of his fees from representing indigent children as a court-appointed attorney.  Is this what Texas taxpayers want for their most troubled children?

California Attorney General Weighs in on Proposition 8

Not surprisingly, given that the office is occupied by former “Governor Moonbeam” Jerry Brown, he feels that the amendment barring same sex marriage should be invalidated.  Also not surprisingly, given that it’s Governor Moonbeam, he takes a novel approach to the argument, one that libertarians may like: that same sex marriage is an inalienable right which cannot be taken away even by constitutional amendment.  (The fighting Ninth Amendment to the United States Constitution does not appear to be cited, as it’s a matter of state law).

Kip Esquire, who is a libertarian and who strongly favors same sex marriage rights, has given Brown’s arguments a thorough review, and seems unimpressed.  Key criticism:

If I were Kenneth Starr (in the sense of, “if I were as insolent and snarky as Kenneth Starr is”), then I would simply respond with something like this: “What the Attorney General is apparently suggesting is that the California Constitution — is unconstitutional. That simply cannot be right.”

More analysis of the Brown brief may be found at Mr. Esquire’s site.

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Iowa Husbands: Knock Before Opening the Bathroom Door

The Iowa Supreme Court has held that a wife can suffer an invasion of privacy in her home, even from her husband, according to this Associated Press story.  Inconsiderate husbands and wives in the Hawkeye State shouldn’t make too much of this holding, which can probably be limited to its bizarre facts.  Upholding a trial court’s award of $22,500 in damages, Iowa’s high court held that Cathy Tigges had a cause of action for invasion of privacy against her husband, Jeffrey Tigges, who placed multiple hidden cameras in the couple’s bedroom.  Necessarily, the Court held that Mrs. Tigges did have a reasonable expectation of privacy from her husband in her marital bedroom, particularly when she thought she was alone.

For the nosey among us, neither the story nor the Court’s opinion reveals Mr. Tigges’ reason for placing the cameras, but one assumes he feared he was being cuckolded.  Whether that was true or not, the Tiggses, who appear to have been a pair of amateur spymasters (each secretly recorded the other’s telephone conversations as well), have also been granted what sounds like a long overdue divorce.

Despite their concerns about privacy, the Tiggeses have succeeded in making their unhappy marriage a worldwide public spectacle, which I am doing my part to promote.  That’s the funny thing about defamation and privacy lawsuits; in a society that values open courts, one often broadcasts the injury to a far larger audience by taking it to litigation.  Thanks to How Appealing for the pointer.

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