Overlawyered: Chronicling The High Cost Of Our Legal System

What Lincoln said

Abraham Lincoln, as we’re sometimes reminded around this time of year, made a living as a practicing lawyer, much of it in trial practice. For some reason this website has never gotten around to citing Lincoln’s Notes for a Law Lecture, possibly his best-known pronouncement on the ethics and practicalities of law practice. Some highlights:

“Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser — in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.”

“Never stir up litigation. A worse man can scarcely be found than one who does this. Who can be more nearly a fiend than he who habitually overhauls the register of deeds in search of defects in titles, whereon to stir up strife, and put money in his pocket? A moral tone ought to be infused into the profession which should drive such men out of it.”

“There is a vague popular belief that lawyers are necessarily dishonest. I say vague, because when we consider to what extent confidence and honors are reposed in and conferred upon lawyers by the people, it appears improbable that their impression of dishonesty is very distinct and vivid. Yet the impression is common, almost universal. Let no young man choosing the law for a calling for a moment yield to the popular belief — resolve to be honest at all events; and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer. Choose some other occupation, rather than one in the choosing of which you do, in advance, consent to be a knave.”

Among those calling attention to Lincoln’s comments on lawyering this week are David Giacalone (Feb. 12; see also here and here) and Daniel E. Cummins in Pennsylvania Law Weekly (“Lincoln Logs of Wisdom”, Feb. 12), both of whom offer additional quotations of interest.

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“Plavix, lawyers and externalities”

Trial lawyers are advertising for cases against the anti-clotting drug Plavix, which worries DB at MedRants (Jan. 31):

Plavix is an important drug for the proper indications. Having stents placed is a proper indication. Like many drugs, Plavix has side effects. Because it inhibits platelet aggregation patients taking Plavix are more susceptible to bleeding. We know that side effect, and must balance the side effect against the benefits that accrue to preventing stent clotting.

We all see the despicable ads from trial lawyers. Whenever a drug has a side effect they see a pot of gold. Obviously these ads scare patients. The externality here comes from these ads. These ads are meant to attract lawsuits, but they additionally scare patients from taking beneficial drugs. We see this phenomenon often.

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Moral: don’t treat the morbidly obese

The eggshell-skull rule, as applied to a self-inflicted injury: Whately, MA selectman Charles Olanyk weighed 460 pounds in 2001 at the age of 51. That sort of obesity leads to health problems, and Olanyk had several: high-blood pressure, obesity, and diabetes. Olanyk stubbed his toe, treated himself with a heating pad, managed to give himself third-degree burns because he didn’t have full sensation in his outer limbs, and went to Doctor John Bookwalter, who had been treating him for leg ulcers; Bookwalter gave him a topical cream and antibiotics. Nevertheless, the burn became gangrenous because of diabetic and lymphedema complications, and Olanyk ended up losing his left leg below the knee. A jury awarded $1.16 million against Bookwalter on grounds that he should have immediately referred Olanyk to a burn doctor. “In the end, everybody’s health care costs go up because this guy couldn’t take care of himself,” said Bookwalter. (Patrick J. Crowley, “Local doctor loses $1.1M malpractice lawsuit”, Brattleboro Reformer, Feb. 14; “After scary bout, months of recovery”, Daily Hampshire Gazette, Mar. 19, 2002).

(Update: eagle-eyed reader F.R. points us to this Telegraph story discussing the UK’s single-payer health service consideration of banning surgery on smokers and the obese to save costs.)

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February 15 roundup

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Waxman hearing = weapon in litigation?

Nice tactic, if you can get away with it: after filing suit, get a House committee to conduct a hostile investigation of your opponent with your clients appearing as friendly witnesses. That’s what appears to have happened in the House Oversight and Government Reform Committee’s hearings last week on alleged shortcomings in the work of Iraq contractor Blackwater USA. The friendly witnesses in this case, called by committee chairman Rep. Henry Waxman (D-Calif.), were family members of several Blackwater consultants killed in Iraq, who are suing the company for damages. According to Rep. Darrell Issa (R-Calif.), the hearing followed upon the sending of a letter to House Speaker Nancy Pelosi by Orange County, Calif., plaintiffs’ lawyer Daniel Callahan of Callahan & Blaine, who’s representing the families. The letter urged a “fruitful and meaningful” investigation of “these extremely Republican companies, such as Blackwater, who have been uncooperative to date”. (S. A. Miller, “Iraq contractor focus of hearing”, Washington Times, Feb. 8; Lattman, WSJ law blog, Feb. 9; Larry Margasak, “Blackwater E-Mail Outlines Gear Shortage”, AP/Washington Post, Feb. 7; Chaos in Motion, Feb. 8).

More: in the comments section, attorney Daniel J. Callahan responds.

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Wild parrots of Telegraph Hill

A beloved San Francisco tourist attraction, the birds roost in two ancient WildParrots.jpg cypress trees whose owner says he can no longer afford the liability risk should they topple or shed branches on spectators. The city is stepping in to spare the axe by taking responsibility for the chance of injury. (Charlie Goodyear, “Preserving perches for wild parrots”, San Francisco Chronicle, Feb. 14; “Buzz saws threaten home of Telegraph Hill parrots”, CBC, Nov. 3, 2005). A 2004 film about the parrots is available here on DVD.

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“Dangerous When in Power”

A March 2007 Reason article is a must-read for its historical description of how so many mass torts arise from the plaintiffs’ bar blaming deep-pocketed private industry for health catastrophes caused by government policy:

The wider conventional view [treats] hazardous products as a sort of standing reproach to capitalism: Businesses foist such products on us in search of profit, the narrative goes, while government protects us from them. And there is much in the asbestos debacle that does reflect discredit on private companies’ actions.

Yet the government, our alleged protector, has done much at all levels to promote products later assailed as needlessly unsafe, from tobacco to lead paint, from cheap handguns to Agent Orange. Often the state is at least as aware of the risks as the businesses that distribute the product, and in at least as good a position to control or prevent them. But-shaped and propelled by the incentives provided by our litigation system-our process of organized blame hardly ever puts the government in the dock.

And, hey: it’s written by Walter Olson, so you know it’s going to be good. Read the whole thing. (Cross-posted at Point of Law.)

(P.S. by W.O.: Thanks, Ted — the piece is being linked and discussed at quite a few places around the blogosphere, including Glenn Reynolds, Reason “Hit and Run”, The Economist’s Free Exchange, Bill Childs, Byron Steir at Mass Tort Litigation Blog, David Hardy’s Arms and the Law, and Prof. Bainbridge).

Plus: And yet more, from business historian (and friend) John Steele Gordon at the American Heritage blog.

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Calif. proposal to ban spanking, cont’d

Turns out there was a law professor behind the idea (Jan. 22):

As for what sparked [Assemblywoman Sally] Lieber’s decision to introduce a bill about spanking, it wasn’t a rash of emergency room visits from 3-year-olds with sore bottoms. The San Jose Mercury News, which first reported the no-spanking story, wrote that Lieber “conceived the idea while chatting with a family friend and legal expert in children’s issues worldwide.” That friend was University of San Francisco Law School professor Thomas Nazario, who fiercely opposes corporal punishment. “It was my idea and I was primarily responsible for coming up with the final draft,” he explains. (Which makes Lieber sound more like Nazario’s pawn than a legislative leader, but I digress.)

(Eilene Zimmerman, “Spanking mad”, Salon, Feb. 5). WryMouth (Jan. 29) has an account of Prof. Nazario’s appearance on the popular Los Angeles radio show “John & Ken” to discuss the idea. Orange County Register columnist Steven Greenhut writes: “I don’t advocate spanking as a rule, but it seems rather harsh to rip a child out of a happy home and put him in some nightmare foster-care scenario and put a parent in jail for doing something that has been widely practiced through the history of parenting.” (“Lawmaker deserves a spanking”, Jan. 28).

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