Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘New Jersey’

Walks like a contingency, quacks like a contingency

An article in the West Virginia Record discusses a survey of physicians complaining about questionable expert witnesses in medical malpractice cases. For some reason, physicians seem to think that experts will say whatever they’re paid to say. But the president of the West Virginia Trial Lawyers Association denounces the survey, including the doctors’ complaints about experts being paid on contingency:

“And you can’t have contingency experts. I abhor that, anyway. There are State Bar rules are [sic] against that.”

In fact, pretty much everyone agrees that it’s unethical to pay expert witnesses on a contingency fee basis. Most states seem to have explicit ethical rules against it; New Jersey certainly does.

But how effective do you think those rules are? They didn’t stop Nagel Rice and Mazie, a New Jersey plaintiff’s law firm, from trying to weasel out of paying its expert witness recently for his work on a med-mal case, leading the expert to sue the firm for his fees. Why did Nagel try to get out of paying? Because, as Nagel admitted in his testimony in that case, they had lost the med-mal lawsuit:

And I said, “And in addition to that, we lost the case. It’s cost my firm over $100,000 in out-of-pockets.” I said, “So, I want you to consider two things: one, it was your first time on the stand; two, I think your 17 hours is really heavy-handed; and, number three, we took a blood bath in this case. And what I do with experts over the course — I’ve been doing this almost 30 years is that where you take a huge loss, experts will virtually always work with you.”

In case that wasn’t clear, he clarified, according to the New Jersey Law Journal (subscription required):

Nagel says his firm does not seek discounts from experts on losing verdicts. Rather, expert witnesses who have an ongoing relationship with his firm tend, of their own volition, to increase their bills in the event of a victory and to cut them after a defeat.

Yup. Spontaneously. “Of their own volition.” If there’s a difference between charging more if you win/less if you lose, and a forbidden contingency, let me know.

Incidentally, perhaps Nagel ought not to have invested $100,000 in the med-mal case in the first place, without doing a little due diligence. One reason that they might have lost was because the plaintiff’s claim that she suffered severe back pain and was permanently disabled by her doctor was successfully undermined by the defendants. As explained by the Appellate Division (PDF):

Video surveillance tapes showed Meegan walking, driving, bending over to talk to children, and lifting her daughter’s bicycle into the back of a car, all without any difficulty whatsoever.

Oops. Pesky facts.

Filed under: , , ,

Deep pocket files: Newark police chase

The outrage is so common, we may have to create its own category. This one is in Newark, New Jersey: three car thieves running from police in a stolen SUV swerved into a group of pedestrians. Taxpayers are on the hook for a $3.6 million settlement, a substantial chunk of which will go to attorneys. [AP/Newsday] The Newark police department has “changed its chase policy” as a result; no mention in the press coverage that now criminals know that they are more likely to escape if they engage in a dangerous high-speed getaway, they’re more likely to engage in a high-speed getaway that will endanger the public. Earlier: Feb. 28; Feb. 27; Jan. 9; Nov. 27, 2005 and links therein.

Filed under: , , , , , , ,

April 4 roundup

All Point of Law edition:

  • I discuss Professor Charles Silver’s latest foray on Bizarro-Overlawyered. Silver and his coauthors are doing legitimate empirical work, but I don’t understand why he keeps making public statements that the published versions of his papers can’t support, and I especially don’t understand why he does that at the same time he’s criticizing the entire reform movement for any given politician’s oversimplified sound-bite. [Point of Law]

  • New Jersey Supreme Court limits benefits of forum shopping, with potentially fatal implications for pending $27 billion class action against Merck. [Point of Law; Beck/Herrmann]

  • The PRI study’s $865B figure isn’t perfect, as I earlier noted in a post since interpreted to mean that I “loved it.” [Point of Law; Turkewitz]

  • Plaintiffs’ bar attempts to smear next Wisconsin Supreme Court justice Annette Ziegler fail. [WSAW; Point of Law]

  • Tax breaks for the plaintiffs’ bar. [Day on Torts; Point of Law]

  • Don’t tell David Behar about this paper; it mentions “privity.” [Point of Law]

Filed under: , , ,

Government rules raising litigation costs

Todd Zywicki posts at the Volokh Conspiracy on the issue of professional licensing as a form of economic protectionism; the comment section quickly turns to the issue of attorney licensing. Eliminating lawyer licensing might be one way to lower the costs of litigation; another way would be to allow “unbundling” of lawyer services — to allow lawyers to provide some services to litigants but not full service representation. (For instance, allowing lawyers to provide research and prepare papers on behalf of litigants, but not to go into court.)

The current legal system is hostile to such an approach, however. On Wednesday, a Federal magistrate judge ruled that a New Jersey lawyer violated ethics rules when he “ghostwrote” pleadings on behalf of a pro-se litigant:

First and foremost, she said, courts generally construe pro se litigants’ pleadings liberally and are more flexible in applying procedural rules. “Simply stated, courts often act as referees charged with ensuring a fair fight,” she said. “This becomes an obvious problem when the Court is giving extra latitude to a purported pro se litigant who is receiving secret professional help.”

[…]

As for the societal benefits of unbundled services, Bongiovanni remarked, “This is not to say that this court does not believe that unbundled legal services, in some form, may be beneficial to the equal administration of justice. But, when viewed under the current RPC, ghostwriting is antithetical to the public interest.”

Bongiovanni ordered that Shapiro enter an appearance by March 30 if he wants to represent Delso, or else cease communicating with her about the case.

The problem, according to the judge, was that the lawyer’s assistance to the litigant wasn’t disclosed to the court. You may wonder why they didn’t just disclose it; the reason likely was because disclosing it could unravel the whole non-full service scheme, and force the attorney to represent the litigant in court.

Filed under: , ,

To protect, serve, and litigate

In 2001, Harry Ruiz, a municipal police officer in New Jersey, was called to a disturbance at a local ballroom, which had been rented by a nearby sports bar to televise some World Cup matches. By the time he responded, the altercation had moved onto the street outside the building. When he responded, he was assaulted by one of the patrons, and he received head and neck injuries which left him permanently disabled.

This, obviously, was the fault of the bar, as well as the owner of the ballroom. The claim? They failed to provide adequate security. To recap: a trained police officer responds to reports of violence, gets injured, and sues the owner of the premises on the theory that they should have had security guards at the site to protect him from the people he had come to arrest!

Traditionally, the Firefighters Rule meant that police and firefighters were not allowed to sue for injuries they incurred while doing their job, in part based on the theory that this was the risk they were paid to take. But this week, the New Jersey Supreme Court held that Ruiz could proceed with his lawsuit. Although the state Supreme Court here is generally considered the most activist in the country, it’s the state legislature at fault in this case. The court was simply straightforwardly interpreting the words of the 1994 statute which abolished the Firefighters Rule in New Jersey; a copy of the court opinion is here.

So, be careful when you call the police or fire department for help; you might find yourself being sued by the people who were supposed to be assisting you.

Walter previously covered an even more outrageous case involving this law: Nov. 2006.

Filed under: ,

Warning: “Contains nuts”

Apropos of Walter’s post about silly warning labels, such as “contains nuts” on a can of nuts, I figure we ought to slap the same warning label on the state legislature here in New Jersey.

For instance, the New Jersey Law Journal reports that a state Senate committee unanimously approved a bill this week that would require warning labels on… internet dating sites. The bill first requires that the site inform members “in bold, capital letters in at least 12-point type” whether or not it has conducted a criminal background check on its members. And if it does conduct criminal background checks, it then has to disclose that there’s no real point to conducting criminal background checks:

[The service] shall state that criminal background screenings are not foolproof; that they may give members a false sense of security; that they are not a perfect safety solution; that criminals may circumvent even the most sophisticated search technology; that not all criminal records are public in all states and not all databases are up to date; that only publicly available convictions are included in the screening; and that screenings do not cover other types of convictions or arrests or any convictions from foreign countries.

(How many people do you think are going to read through that verbal thicket of disclaimers?) But wait, that’s not all. The Senate had some extra free time, so it piled on the list of warning labels required:

Read On…

Filed under: ,

$2.50 for a dozen; $3,000,000 for a half dozen

In 2003, a lesbian couple from New Jersey paid about $3,000 to Repro Lab, a Manhattan sperm and embryo bank, to store six embryos created from eggs taken from one of the women. When the couple approached the bank last year in order to retrieve the embryos, so they could be implanted into the other woman, the bank told them it had lost the embryos.

The couple’s demand for compensation for this clear breach of contract, for “pain, injury, mental anguish and emotional distress”? $3,000,000. Plus punitive damages. (New York Post; AP)

Filed under: ,

“Jury rules for girl in bike-skate crash”

Updating yesterday’s post about a widely discussed New Jersey case: “Deliberating just 15 minutes, a Morris County civil jury at 4 p.m. today declared that a Chester Township teenager was not to blame in 2003 when she collided with a bicycling physician while riding her in-line skates.” (Peggy Wright, Morristown Daily Record, Mar. 5). Earlier, it was reported: “The girl was knocked to the ground in the collision and bruised, but her parents have not filed a countersuit.” (“Bicyclist sues child roller-skater over accident”, AP/CourtTV, Mar. 1).

Filed under: ,

Thanks for listening…

I want to thank Walter Olson and Ted Frank for honoring me by giving me an opportunity to guest blog here while Ted is away this week.

First, I guess I should introduce myself, for those of you wondering who the heck I am. I’m an attorney licensed in New Jersey, with a practice which focuses on commercial litigation. Aside from myself, I have several relatives who are attorneys, so it should be clear that I have nothing against lawyers. (In fact, despite all the evidence to the contrary here on Overlawyered, I happen to think we perform a useful function.)

My axe to grind is with those (such as the folks over at the website Ted affectionately calls “Bizarro-Overlawyered”) who want to use the courts, not to enforce agreements or to compensate the victims of wrongdoing, but merely as a way to transfer wealth from corporations to trial lawyers, ostensibly on behalf of consumers.

One of my first close encounters with overlawyering was in the early 1990s, when a classmate of mine got drunk, climbed up on a train, and electrocuted himself; coincidentally, this old incident was mentioned on Overlawyered just a few weeks ago. At the time, I was perhaps naively shocked to find out that someone who was so obviously in the wrong could successfully point a finger elsewhere (or in this case, a lot of fingers) and cash in. The case had everything: a grossly irresponsible plaintiff, innocent defendants whose only fault was having deep pockets, and even the failure of immunity laws to prevent abuse of the tort system. Since then, I’ve become less naive, but I’m no less shocked at these types of stories.

Oh, and I used to blog about politics more generally at Jumping to Conclusions, although I haven’t updated that in quite a long while. In any case, I’m happy to be here.

Filed under: , , ,

February 8 Roundup

  • New Jersey Supreme Court won’t touch appellate court reversal of $105M dram-shop verdict against Aramark Corp. Not noted in our earlier coverage: Aramark was held liable as a deep pocket through illegitimate piercing of the corporate veil, adding yet another problem to an appalling series of problems with the trial. [New Jersey Law Journal; earlier on Overlawyered; Point of Law]
  • Half-trillion-dollar class certified against Wal-Mart in lawless Ninth Circuit decision. [Point of Law]
  • Court papers show direct link to Lerach in Milberg probe. Most entertaining: a letter by Lerach saying “Dr. Cooperman’s reputation and character are impeccable.” Cooperman has since pled guilty to taking kickbacks, and Milberg Weiss now says he has no credibility. [National Law Journal; WSJ Law Blog]
  • Slip and fall worth $5.7M [Atlantic City Press]
  • Cardiologists doing Brazilians: “Graduating med students aren’t blind; they see established physicians with busy practices dropping out. Looking ahead they see more headaches–more controls and regulations, more scrutiny, more liability, less money.” [TIME via Kevin MD]
  • Florida law may allow men to get out of paying fraudulent paternity when DNA shows they’re not the father. [Miami Herald; see also Parker v. Parker; earlier on Overlawyered]
  • Editorial: Alabama Supreme Court ruling on illegal multi-billion-dollar punitive damages award in Exxon contract dispute can prove state is no longer tort hell. [Press-Register]
  • Update to earlier Overlawyered post: Danny Cuesta pleads guilty, sentenced to fifteen months; Melissa Cuesta, whose claim we covered, arrested for perjury, pleads not guilty. [EmpireStateNews.net via Teacher trash blog]
  • Incomes and inequality: what the numbers don’t tell us. [Marginal Revolution]
  • India and the drug patent wars. [AEI]
  • I (along with John Beisner, Michael Hausfeld, and John Stoia) am speaking on a panel on the Class Action Fairness Act at the National Press Club February 14. [Federalist Society]

Filed under: , , , , , , , , , , , , ,