Overlawyered: Chronicling The High Cost Of Our Legal System

Better head over to the ER

Problem: many patients go to hospital emergency rooms “when what they really need is to see or talk to their primary-care doctors”, with resulting high expense and interference with genuine emergency cases. As usual, the legal system’s role is a helpful and constructive one:

Assume a patient calls his doctor about a new symptom. Ideally, after listening on the phone and deciding that it’s probably nothing serious, the doctor arranges an office visit for the next day, offers reassurance, and averts an unnecessary late-night E.R. visit. But doctors don’t get reimbursed for that call. And what if they tell a patient to wait and something bad happens? Then malpractice lawyers have a field day.

(Zachary F. Meisel and Jesse M. Pines, “Medical Examiner: The Allure of the One-Stop Shop”, Slate, Sept. 12).

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OK for private school to have English-only rule

“A federal judge ruled [last month] that a Wichita Catholic school policy requiring students to speak only English didn’t break any civil rights laws.” U.S. District Judge J. Thomas Marten still felt free to give St. Anne Catholic School a tongue-lashing over the alleged divisiveness of its policy, though he found it did not rise to the level of creating a “hostile educational environment”, which would apparently have triggered liability even in a private religious school setting. (Ron Sylvester, “School prevails in English-only lawsuit”, Wichita Eagle, Aug. 16, GoogleCached).

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“Obama, McCain make a joint appearance — in frivolous lawsuits”

Famous persons often attract the attention of serial or scattershot lawsuit-filers, including inmates filing handwritten complaints. Senators McCain and Obama are luckier than many defendants because of the principle cited by a federal judge as he dismissed one recent complaint: “Members of Congress are absolutely immune from lawsuits, such as this one, arising from the performance of their official duties.” But such suits do “require both the defendants and the judicial system to pay attention”, and sometimes employ attorneys to file multi-page formal motions in response. (Michael Doyle, McClatchy, Sept. 12 via How Appealing).

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September 15 roundup

  • Saying fashion model broke his very fancy umbrella, N.Y. restaurant owner Nello Balan sues her for $1 million, but instead gets fined $500 for wasting court’s time [AP/FoxNews.com, NY Times]
  • Spokesman for Chesapeake, Va. schools says its OK for high school marching band to perform at Disney World, so long as they don’t ride any rides [Virginian-Pilot]
  • More on Chicago parking tickets: revenue-hungry Mayor Daley rebuffed in plan to boot cars after only two tickets [Sun-Times, Tribune]
  • Too old, in their 50s, to be raising kids? [Houston Chronicle via ABA Journal].
  • Britain’s stringent libel laws and welcome mat for “libel tourism” draw criticism from the U.N. (of all places) [Guardian]
  • Beaumont, Tex.: “Parents sue other driver, bar for daughter’s DUI death” [SE Texas Record, more, more]
  • “Three pony rule”: $600,000 a year is needlessly high for child support, even if mom has costly tastes [N.J.L.J., Unfiltered Minds]
  • Advocacy groups push to require health insurers and taxpayers to pay for kids’ weight-loss camps [NY Times]
  • Lester Brickman: those fraud-rife mass screening operations may account for 90 percent of mass tort claims [PoL]

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Howard Hughes “Mormon Will” case, thirty years later

Thirty years after a jury ruled against his claims to be the inheritor of a fractional share of the reclusive tycoon’s wealth, Melvin Dummar still hasn’t given up. In a 19-page opinion, the Tenth Circuit has now upheld the dismissal of his latest lawsuit. (Pamela Manson, “10th Circuit Court of Appeals rules against Melvin Dummar and the ‘Mormon Will'”, Salt Lake Tribune, Sept. 13)(via Know Your Courts, Tenth Circuit/Colorado gadfly site).

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Update: Pennsylvania politician Vincent Fumo

Longtime readers may recall (Oct. 24-25, 2001) what we described as the “unusually bare-knuckled” tactics, “even by Philadelphia standards”, of the Philly political machine when a business-oriented advocacy group called Pennsylvania Law Watch organized with a plan to issue ratings of judges statewide. We quoted the Philadelphia Daily News at the time:

“State Sen. Vincent Fumo prompted some controversy last month when he told the Philadelphia Chamber of Commerce that anyone who helped [Republican judge/candidate Michael] Eakin by donating to Pennsylvania Law Watch ’should expect to be arrested,’ according to a witness at the chamber meeting, who also said Fumo mentioned Richard Sprague as a member of a team of attorneys ready for action.”

Although no one was literally arrested, three local Democratic politicians proceeded to file a suit against Pennsylvania Law Watch seeking “a freeze on Law Watch’s assets, the right to go through its books, an injunction against its activities, and more.” Almost before the episode got any national attention, the case settled, “with Law Watch agreeing with Pennsylvania Democrats that ‘it would not attempt to influence the statewide judicial elections through advertising, ‘push polling’ or any other kind of communication with the public'”.

Now, six years later, and with no direct relation to the above, longtime powerbroker and State Sen. Fumo is going to trial in federal court “on charges he used $3.5 million in what he called ‘OPM’ _ other people’s money _ to keep his political machine well-oiled and fund a high life that included three vacation homes and heated sidewalks outside his mansion. Jury selection is expected to last a week, and the trial three months.” [AP/Wilkes-Barre Times-Leader, AP/York Daily Record, Philadelphia Daily News, Pittsburgh Tribune-Review].

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Med-mal: feeding the bears at Yellowstone

We settled two lawsuits this quarter. In neither had there been medical negligence. It’s pretty galling to settle cases like these, but it’s smart. The deck is stacked against us, and you have to make the good decisions, even when it is bitter. …

The problem is that the newspapers are replete with cases where there is a huge jury award in cases where there was no malpractice. This is what induces us, and lord knows how many other medical groups, to settle cases which were well-handled. When there is no correlation between whether negligence occurred and whether you win or lose, the only viable strategy is to pick your fights very very carefully.

(Shadowfax, Aug. 7 via KevinMD).

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“Cost of Discovery a Driving Force in Settling Cases, Study Shows”

“There’s no incentive to pursue low-merits cases because opponents won’t settle them.” Wrong:

On one thing plaintiffs lawyers and defense counsel can agree: The cost of litigation, particularly discovery, has become the driving force in settling cases, not the merits, according to results of a survey of groups representing both sides. The joint survey, from the American College of Trial Lawyers and the Institute for the Advancement of the American Legal System, found that 83 percent of the nearly 1,500 lawyers responding found costs, not the merits of a case, the deciding factor in settling.

The unfairness cuts both ways: some low-merit cases become worth filing because of their discovery imposition value, while some high-merit cases are made uneconomic to file because of the discovery burden they bring (Pamela A. MacLean, National Law Journal, Sept. 10).

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