Overlawyered: Chronicling The High Cost Of Our Legal System

Our blog-iversary

Overlawyered turns 13 today, launched July 1, 1999. You can read our first fifteen days’ worth of posts at this page.

P.S.: “It’s a blog-mitzvah!” (Ira Stoll).

And a sampling of other reactions via Twitter: “First in time and, to this day, in merit.” [Andrew Grossman] “In internet years, 13 makes you ancient. Cheers!” [@libbyspencer] “Heaven help me, I remember that, approximately.” [G.S. Taylor] “A voice of reason in an often twisted civil justice system.” [Marc Williams] “You are the Methuselah of the internet.” [@scottgreenfield] “I remember reading the site when I was a law student in 2000.” [Jim Dedman] “Do you realize your blog’s now a teenager? Time to start locking up the liquor…” [@petewarden] “Happy blogiversary! Your book, The Litigation Explosion, was one of the most import that I, then a young lawyer, ever read.” [@bookwormroom] “#haiku? @overlawyered blog/ Started thirteen years ago/ More profound than me.” [@SupremeHaiku] “Congrats @walterolson on your blogiversary! even a progressive like me reads it regularly! ?#imafan” [Monique Hall] “Started reading not long after; never stopped. Here’s to the next 13 years!” [@Hal_RTFLC] “Happy (belated) 13th birthday to @walterolson’s indispensable legal blog” [@damonroot], Jim Dedman (“we here at Abnormal Use were early readers”).

Plus: some generous comments from Dan Pero at American Courthouse, Kevin Underhill/@loweringthebar, Bob Dorigo Jones (“It’s long held the first spot on my list of Must Read blogs.”).

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ObamaCare decision roundup II

  • The article everyone’s talking about on John Roberts’s switch [Jan Crawford, CBS] But who were her sources?
  • “ObamaCare Lost on the Medicaid Mandate & Commerce Power. It May Yet Lose on the Tax Power” [Michael Cannon, Cato]
  • The ultimate, and I do mean ultimate, link roundup [Joshua Matz, SCOTUSBlog]
  • Opinion reactions: Steve Chapman, Michael Barone.
  • A view from Left: conservatives lost Thursday, and purported silver lining’s not even tin [Lemieux] NFIB v. Sebelius “the most important court victory for liberalism in my lifetime.” [Joey Fishkin]
  • Not Marbury, no way, no how [David Wagner, Ninomania]
  • “Polarization and legitimacy: why we’re wigging out” [Will Wilkinson, The Economist]
  • Call off the celebrations, it’s just a satire: “Supreme Court Strikes Down All Laws Signed By Barack Obama” [Balkin]
  • Don’t forget that Cato’s star-packed event looking at the meaning of the NFIB v. Sebelius decision will take place live on the web tomorrow, Monday, Jul. 2, 1:30-4:45 Eastern.
  • And I’ll be the guest on the “Pundit Review” show this evening at 7:30 Eastern on Boston’s RKO with Kevin Whalen to discuss Thursday’s ruling.

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ADA and law schools: Down with timed exams?

When the topic of testing accommodations comes up in the Disability Law classes he teaches, Sam Bagenstos is struck at the vigor with which his students push back, finding it unfair that so many of their colleagues request and obtain extra time on exams as an accommodation to learning disabilities or other intellectual disabilities, and expressing concern about the danger that some families will be better than others at playing the system. “I believe that the solution is to give all students more time. For this reason, I give take-home exams wherever possible.” Scott Greenfield isn’t satisfied by this answer at all:

…when it comes to being a lawyer, the desirability of providing accommodations is trumped by the ability to fully, competently and ethically serve clients….

Yes, there are things that lawyers do which don’t require speedy processing, but as long as a lawyer is just as entitled to try a case as write a contract, he must be capable of doing both.

More: Paul Horwitz.

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International law roundup

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“Lawyer: Suspend murder trial so I can compete in Hemingway look-alike contest”

Attorney Frank Louderback, representing murder defendant Jerry Bottorff, asked the judge to suspend his client’s scheduled trial on July 20.

Why?

He’s entered the annual Ernest Hemingway Look-a-Like Contest at Sloppy Joe’s in Key West and doesn’t want to miss it. The winner will be crowned on July 21.

A judge turned down the request, pointing out that the trial date had been announced long previously, and wished Louderback the best of luck in next year’s look-alike contest. [Miami Herald, MSNBC]

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Obamacare decision roundup

  • “We won everything but the case.” Ilya Shapiro at SCOTUSBlog on what it’s like to have your arguments succeed while your client goes down. Recommended;
  • David Kopel applauds, especially the Medicaid ruling limiting strings on federal support of states;
  • Michael Greve turns thumbs down: “the Chief’s supposed act of statesmanship has bought nothing that is worth having.”
  • Clark Neily: “as litigators know very well, it is always more important what a court did than what it said. … Notwithstanding the majority’s assurances … the Court ratified what many perceive as the most significant expansion of federal power in 75 years.”
  • John Podhoretz: Roberts’ artful dodgery on tax issue does the Court no credit. Similarly: Jim Huffman;
  • From a David Frum reader: did Roberts bail because the four justices to his right got too frisky on severability?
  • And Cato’s star-packed event looking at the meaning of the NFIB v. Sebelius decision will take place live on the web this coming Monday, Jul. 2, 1:30-4:45 Eastern.

Earlier here, here, and here.

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N. H. med-mal: “early offers,” with a side of loser-pays

Overriding a veto from Gov. John Lynch, the New Hampshire legislature on June 27 enacted SB 406, establishing the nation’s first “early offer” system for medical malpractice claims. The law establishes incentives for defendants to make offers early in the litigation process that cover plaintiff’s economic losses such as medical bills and lost wages. The early-offer process is at claimants’ option only; claimants are free not to request such an offer. [Kevin Pho; supportive website; trial lawyers’ opposition website]

Importantly, the new procedure also contains pioneering elements of loser-pays in both directions. If a claimant chooses to accept a defendant’s early offer of economic-loss expenses, the defendant will pay an additional sum to reflect a scheduled assessment of pain and suffering, plus the reasonable costs of attorney representation. However, if the claimant invokes the early-offer process but then turns down the offer as inadequate, there is a real risk of a fee shift in the opposite direction:

XII. A claimant who rejects an early offer and who does not prevail in an action for medical injury against the medical care provider by being awarded at least 125 percent of the early offer amount, shall be responsible for paying the medical care provider’s reasonable attorney’s fees and costs incurred in the proceedings under this chapter. The claimant shall certify to the court that bond or other suitable security for payment of the medical care provider’s reasonable attorney’s fees and costs has been posted before the court shall consider the case.

At TortsProf, Christopher Robinette explains in some detail (contrary to an error-filled screed in a Litigation Lobby outlet) why this adds up to a generally good deal for claimants (who, of course, are free not to trigger the process if they disagree) as well as making the system fairer. “Early-offer” proposals have been championed over the years by Jeffrey O’Connell, the distinguished University of Virginia torts scholar, and by Philip K. Howard of Common Good, among others. More on loser-pays here.

[Research assistance: Cato Institute intern Byron Crowe; cross-posted at Cato at Liberty]

More from John Steele Gordon at Commentary: “This looks like a big step in the right direction.”

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