Canada: curling accommodation demanded

A Winnipeg man with a bad knee has filed a human rights complaint challenging the refusal of curling authorities to permit him to use a “delivery stick” in competitions that would permit him to throw rocks without bending his knees. The devices have become popular among elderly and disabled curlers, but the Canadian and World curling associations (yes, there turns out to be curling outside Canada) have banned it as giving an unfair advantage, much as golf authorities in the U.S. tried to ban the use of golf carts as a substitute for walking until Casey Martin’s victorious Supreme Court challenge. (“New rule discriminates, says curler”, CBC, Dec. 10)(more on disabled-rights demands in sports competition)

ATLA: Avoid jurors with “strong religious beliefs”

CNSNews.com reports that an American Trial Lawyers Association publication, “ATLA’s Litigating Tort Cases,” an $800 manual advertised as “the inside track to establishing and maintaining a successful tort practice,” recommends quizzing jurors on their religious beliefs during the “voir dire” procedure meant to exclude biased jurors.

The chapter classifies certain individuals as “personal responsibility” jurors. “The personal responsibility jurors tend to espouse traditional family values.” Often, “these jurors have strong religious beliefs.” Because “personal responsibility jurors” hold values such as “People should be self-reliant, responsible, and self-disciplined. When people act irresponsibly and are not self-disciplined, there are consequences. People must be accountable for their conduct,” they may not be sufficiently sympathetic to the plaintiffs.

Thus, “the only solution is to identify these jurors during voir dire and exclude them from the jury.”

A spokesman for Americans United for Separation of Church and State objects: “‘Certainly a good lawyer will try to ferret out any evidence of prejudice, whether it’s religious prejudice or racial prejudice, prejudice against women, whatever, that’s legitimate,’ [Rob] Boston said. ‘But, for a lawyer to simply assume that certain religious beliefs will dictate certain behaviors is naive and I think it does a disservice to our legal system.'” (Jeff Johnson, “Trial Lawyers Question Jurors’ ‘Strong Religious Beliefs'”, CNSNews.com, Dec. 18).

Alas, the article uncomfortably and unnecessarily singles out the Judaism of the author of the book chapter in question. But the identification of trial lawyers’ strategy in such bald terms provides interesting insight.

Plaintiffs’ lawyers are fond of accusing tort reformers of attempting to remove certain decisions from “the people”. But under the current tort system, jurors in many cases are not so much “the people” as a hand-picked group selected to favor a certain result. When one combines this biased sampling with random variation, and then combine that with the possibility of jackpot damages awards, it takes only a small minority of “the people” to create a jury pool that creates dramatic shifts in wealth to lawyers from the rest of society.

Update: Mississippi Supreme Court

Mississippi Supreme Court Justice Oliver Diaz, who was indicted in July for an alleged judicial bribery scheme (see Aug. 19), has been suspended with pay by a tribunal–a formality, says his lawyer, since Diaz was already on a voluntary leave of absence. (Jerry Mitchell, “Special tribunal suspends justice”, The Clarion-Ledger, Dec. 17; AP, “Panel orders Mississippi justice suspended”, Dec. 16). The Mississippi Supreme Court has had other troubles recently (see Oct. 1); the judicial misconduct case against lame duck Justice Chuck McRae remains pending, and probably will not be decided before he leaves the bench January 5. (Beth Musgrave, “Justice describes ‘hateful’ court full of ‘yes men'”, The Sun Herald, Oct. 31).

Update: Daytrader rampage suit

Mark Orrin Barton, like the overwhelming majority of day traders, lost money — approximately half a million dollars during the boom market of 1998-99. Unlike most losing day traders, Barton reacted by showing up at the day-trading offices and murdering nine people and wounding twelve before killing himself. The victims tried to hold the day trading firms liable, on the theory that day-trading companies are committing torts against their customers by letting them choose to lose money, thus causing them to snap. (See Jan. 9-10, 2002). The Georgia court of appeals has affirmed a summary judgment against such ludicrous claims–but in part because there had been no previous crime at the firm, which makes one wonder whether such an attenuated theory of causation might flower in the future. (Richmond Eustis, “Day Trader Firms Ruled Not Liable for Rampage”, Fulton County Daily Report, Dec. 19) (via Bashman). Curiously, a true-crime writer on the web quotes one of the wounded plaintiffs as saying “You can’t blame it on day trading.”

Oklahoma AG: I wasn’t familiar with short-selling

“I have recently been made aware of a market practice known as ‘short selling’ and am amazed that it is legal,” Oklahoma Attorney General Drew Edmondson wrote the Securities and Exchange Commission last year. That’s one of many tidbits to be found in a column by the L.A. Times’s Mike Hiltzik about politicians’ ties to Oklahoma-based Pre-Paid Legal Services, a multilevel marketing (MLM) enterprise that has been the subject of a fair bit of controversy and litigation over the years (Mike Hiltzik, “Lockyer Not Above a Little Legal Aid”, Los Angeles Times, Dec. 18). Oklahoma AG Edmondson’s bio lists him as having been born on “October 12, 1946” rather than, as one might assume, “yesterday”.

Killer nurse: hospitals didn’t share records

“‘What I’m coming to understand is that, short of an actual conviction or revocation of a license, none of that information gets shared,’ said Dr. William Cors, chief medical officer at Somerset Medical Center in Somerville, N.J., where Mr. [Charles] Cullen last worked and where, prosecutors say, he may have killed 12 to 15 patients. ‘If anything good comes from this, it would be to reform the system where we’re prevented from telling one another what we know out of fear, quite frankly, of being sued.’ … Ms. Schantz, at St. Luke’s, said, ‘There is no record that anyone called here, ever, for any recommendation on him.’ And if someone had called? She said she was not sure what the hospital would have said. Hospitals are loath to say anything negative, she acknowledged, adding, ‘We’re a litigious society.'” (Richard P?rez-Pe?a, “Hospitals Didn’t Share Records of a Nurse Accused in Killings”, New York Times, Dec. 17). For more on reference liability, see Aug. 7; discussion of pilot and teacher cases from The Excuse Factory (link now dead). See also Mar. 23, 2000. More: Jan. 29, Mar. 3, Mar. 30.

Daschle does the trial-lawyer hop

A Senate Minority Leader’s gotta drum up money, after all: he popped down to Jacksonville last Thursday for a fund-raiser hosted by plaintiff’s lawyer Wayne Hogan, part of the $3.4-billion-in-fees Florida tobacco team (see Apr. 12, 2000), and then yesterday attended an event at the Providence, R.I., home of Ness Motley’s Jack McConnell (see Jun. 7, 2001) (David DeCamp, “Party not big on bid from Weinstein”, Jacksonville Times-Union, Dec. 15; Liz Anderson, Scott MacKay and Katherine Gregg, “State House’s quick Thanksgiving food drive is no turkey”, Providence Journal, Dec. 1) (hat tip: South Dakota Politics blog)

Florida AARP supports liability cap

“In a reversal that has stunned the plaintiff bar, the Florida chapter of AARP, the powerful senior lobbying group, has declared its support of caps on pain and suffering damages in abuse and neglect lawsuits against Florida nursing homes.” In years past the retirees’ group has been an influential foe of limits on nursing home liability, but the state chapter reversed course and decided to strike a compromise with nursing home operators that would trade limits on pain-and-suffering liability in exchange for the industry’s agreement to accept new state rules, among them a requirement that facilities maintain assets so that successful litigants can recover liability verdicts. A lobbyist for the Florida chapter “said AARP changed its view after learning that many nursing homes were hiding their assets to avoid liability claims. In addition, many nursing homes have been carrying little or no liability coverage, despite the 2001 law’s requirement that all facilities carry coverage.” The group’s change in course is likely to draw fire from other elements within AARP that remain closely allied with the litigation lobby; it also was criticized by an official of the “Coalition to Protect Florida Elders, a nonprofit organization that is funded by trial lawyer Jim Wilkes.” More on Fla. nursing home suits: Mar. 13-14, 2001; Mar. 19, 2003; etc. (Julie Kay, “Unexpected Ally”, Miami Daily Business Review, Dec. 17).