Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘North Carolina’

Welcome KION-AM Salinas listeners

I was a guest on Mark Carbonaro’s a.m. show this morning on KION-AM in Salinas, Calif. to discuss The Rule of Lawyers. To book a broadcast interview on the book, email me directly or contact Jamie Stockton at the St. Martin’s/Griffin publicity department: 212-674-5151, ext. 502.

Some other recently noted publicity on The Rule of Lawyers: reviewer Art Taylor of Metro Magazine in North Carolina’s Research Triangle named it as one of the top ten nonfiction books of 2003 (Jan.). Writing in Salt Lake City’s Deseret News, Hal Heaton of the Brigham Young University Center for Entrepreneurship devoted much of a column to discussing the book’s contents (“Litigation hinders new ideas, growth”, Jul. 11, not online). And Maurice Neligan, a distinguished cardiac surgeon in Ireland, recommends the book as “most revealing” in a piece published in Irish Times (“Common sense, fat chance”, May 11, not online).

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Edwards and jury selection

The Washington Times does some reporting on John Edwards’s trial practice in North Carolina. (“Edwards’ malpractice suits leave bitter taste”, Aug. 16). Reporter Charles Hurt talks to local doctors about Edwards’ cerebral palsy cases and also relates the following story about the role of jury selection in one of the future senator’s prominent cases:

“In 1991 [in Wake County], he won $2.2 million for the estate of a woman who hanged herself in a hospital after being removed from suicide watch. … During jury selection, Mr. Edwards asked potential jurors whether they could hold a doctor responsible for the suicide of their patients.

“I got a lot of speeches from potential jurors who said they did not understand how that doctor could be responsible,” Mr. Edwards recalled in an interview shortly after the trial. Those persons were excluded from the jury.

The article doesn’t say whether Mr. Edwards had to use up his peremptory challenges against the skeptical jurors or was able to get them purged for cause. Either way, it’s a reminder of one way the political process is both more open to diversity and more responsive to public opinion than the trial process: you can’t eject citizens from the voter pool just for holding the wrong sorts of views.

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The helping professions

North Carolina: “Raleigh lawyer Larkin Kirkman was paid more last year for representing poor people in court — more than $137,000 — than I. Beverly Lake earned as chief justice of the N.C. Supreme Court. … [Kirkman] represents juveniles, parents accused of abusing or neglecting their children and defendants charged with low-level felonies and misdemeanors.”

“Senior Resident Superior Court Judge Donald W. Stephens questioned whether some lawyers are being honest about the hours they spend defending those cases. ‘Many of us were shocked to find that some of the highest-paid lawyers on this list participated in no jury trials during that payment period and represented very few indigent defendants charged with serious felonies,’ Stephens said.” However, Kirkman said that some of the money paid him in 2003 was for 2002 work and that his previous years’ earnings from the county had been lower, at $87,750 for 2002 and $76,648 for 2001. (Andrea Weigl, “Lawyer fees criticized in Wake”, Raleigh News & Observer, Jul. 16).

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Market Influence

There may be good news on the horizon for physicians in John Edwards’ home state. No, the state didn’t pass sweeping tort reform. It’s market magic:

Unlike the last survey, business-related cases didn’t just lead the top of the list. In a dramatic change from past years, they made up more than a quarter of all the entries for 2003, with 14. That’s more than double the number of business recoveries reported to Lawyers Weekly in 2002 ? and matches the tallies in medical malpractice and auto negligence.

Another telling statistic: In 2003, six business-related cases resulted in recoveries of $7 million or more, according to the survey. There were only three reported in that range in 2002 ? and only one in 2001. In contrast, no contested personal injury recoveries reached $7 million in 2003.

Why is that good news for physicians and what does it have to do with the free market? It means that lawyers will be expending their energies on business cases instead of malpractice cases. This may not be good for the economy of North Carolina, but it would give doctor’s and hospitals a reprieve. As one lucky winner, I mean attorney, puts it:

“In my view, in terms of making a living, business misconduct cases in today’s environment are becoming almost as profitable as personal injury, where you traditionally have had more high-end verdicts and settlements,” said Hunt.

And I thought they were in this to champion the little guy.

Click here to see a list of the top 55 verdicts for 2003 in North Carolina, none of which were under one million dollars.

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A 1 in 1.09 quintillion chance

A North Carolina woman sued a hospital for failing to correctly diagnose her husband’s cancer. Except they did diagnose it correctly:

…Linda Brown alleged that Charlotte Regional contaminated tissue samples during a lung biopsy in 2000 which resulted in the wrong cancer diagnosis of small cell lung cancer. … Brown’s attorneys argued that due to hospital technicians not wearing gloves or due to unsanitary conditions, Gerald Brown’s tissue was contaminated with someone else’s DNA.

The defense argued that’s nearly impossible because someone would have had to actually have lung tissue containing the cancer cells on his fingertips while when he handled the sample.

The hospital’s attorneys argued during opening statements last week that the chances of Gerald Brown’s DNA being contaminated was 1 in 1.09 quintillion. In fact, the chances of that happening may be even greater since that one-in-a-quintillion person would have to be in Punta Gorda, inside Charlotte Regional, having a lung biopsy at the same time and have small cell lung cancer. But no one else in the hospital was undergoing a lung biopsy at the same time as Gerald Brown on March 22, 2000.

The jury ruled in favor of the hospital, but the case took four years and several hundreds of thousands of dollars to defend. That’s OK with Mrs. Brown, because now she knows “the truth.” Apparently, neither she nor her lawyers, thought of having an autopsy to discover the truth. But then, autopsies cost money, with nary a chance of making money. Not even a 1 in 1.09 quintillion chance. (More: letter to the editor Aug. 16).

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Batch of reader letters

We’ve posted four more reader letters on our letters page. Topics this time: a lawyer who won a $50 million award over the city of Chicago’s slow response to a 911 call (later settled for less) writes to take issue with our perspective on the case; a Texan who worked for 35 years in the Social Security disability program believes that as the process has become more legally contentious it has grown both slower and less fair; Missouri employment lawyer George Lenard discusses the recent, widely publicized “popcorn butter” workplace-injury verdict; and a North Carolina lawyer shows some exasperation with us.

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“Edwards gave loan to a federal judge”

“In 1994, when Sen. John Edwards (D-N.C.) was still the biggest tort lawyer in North Carolina, he lent $30,000 to a federal bankruptcy judge who was then overseeing a case on which Edwards?s wife, Elizabeth, did much of the legal work. The judge, J. Rich Leonard, is a longtime friend of Edwards?s. … Jonathan Turley, a professor of law at George Washington University who has brought ethics charges against judges before, said the arrangement presented a ‘compelling case of conflict of interest. It is hard to imagine a judge could rationalize presiding in a case where he holds a loan from a couple,’ he said.” Both Judge Leonard and the Edwards campaign deny impropriety and say the loan was fully disclosed and was repaid. Although Elizabeth Edwards’s law firm received a $1 million contingency fee for its work in the case she handled before Leonard, the fee was paid after she had already left the firm and she has said that she did not receive any of the proceeds. (Geoff Earle, The Hill, Mar. 2). Plus: instant retrospectives on the Edwards campaign (Chris Suellentrop, “The Pretender”, Slate, Mar. 2; Michael Graham, “The littlest candidate”, National Review Online, Mar. 3).

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John Edwards and the money power

“We are not going to lose the race for lack of funds”, said Dallas trial lawyer Fred Baron, finance co-chairman of the Edwards campaign (and poster boy for legal ethics) as the Wisconsin primary approached. (Rob Christensen and John Wagner, “Edwards sees no reason to surrender”, Raleigh News and Observer, Feb. 12). The challenge for Edwards’s fund-raising was spelled out by the Washington Post last month (Paul Farhi and Thomas B. Edsall, “Filling War Chests Key As Campaigns Progress”, Jan. 21): “The North Carolina senator has received a higher percentage of large donations than any other major candidate — 83 percent were between $1,000 and $2,000, the maximum allowed by law. Many of these donations came from plaintiffs’ attorneys, members of Edwards’s former profession. This means that many of Edwards’s donors have ‘maxed out’ and can give no more money. For Edwards to become fully competitive in the race for cash, he will have to find new contributors beyond his trial-lawyer base.” Why, even many of the paralegals, receptionists, bankrupt support staffers of law firms and their nonvoting husbands have maxed out (see Hill News, May 7, 2003). For more on Edwards’ fund-raising, see Feb. 3; Jan. 27; Jan. 23, 2004; Aug. 5 and Apr. 7-8, 2003; and Jul. 18 and May 1-2, 2002. More: Kerry press secretary Stephanie Cutter imprecisely describes Edwards campaign as “wholly funded by trial lawyers” (Adam Nagourney and David M. Halbfinger, “Kerry and Edwards Square Off as Dean Abandons Campaign”, New York Times, Feb. 19)

Edwards’s self-reinvention as the candidate of trade protectionism has provided another reason for sensible voters to steer clear of him. As Alex Tabarrok notes: “In his stump speech, John Edwards is fond of empathizing with the plight of a 10-year old girl ‘somewhere in America,’ who goes to bed ‘praying that tomorrow will not be as cold as today, because she doesn’t have the coat to keep her warm.’ Yet, as John Tierney points out, ‘clothing has become so cheap and plentiful (partly because of textile imports, which Mr. Edwards has proposed to limit) that there is a glut of second-hand clothing, and consequently most clothing donated to charity is shipped abroad. The second-hand children’s coats that remain in America typically sell for about $5 in thrift shops.’ (emphasis added)”. See “Nader Searches for His Roots”, New York Times, Feb. 15. To be sure, Edwards has some familiarity with the internationalization of markets: when the populist Senator and his wife left their Massachusetts Avenue mansion to trade up to a nicer mansion on P Street, they disposed of the old one “for $3 million to the Hungarian government for use as an embassy”. (Marc Fisher, “Regular Guys Who Live In Mansions”, Washington Post, Feb. 17). See also Byron York, “John Edwards Cares about YOU!”, Roll Call/National Review Online, Feb. 17. (& welcome WSJ “Best of the Web”, Andrew Sullivan, Mickey Kaus, and (thanks!) Steve Bainbridge readers)

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Edwards’ persuasive powers

Having long taken an interest in the career of North Carolina Sen. John Edwards (see Sept. 16, Aug. 27 (talk about bad predictions!), Aug. 5, earlier posts), we are not entirely surprised that the silver-tongued trial lawyer/politician did so well among Iowa Democrats, not to mention charming such commentators as Mickey Kaus (scroll to second “P.P.S.” item) and Andrew Sullivan (second item). As we’ve had occasion to note, before entering politics Sen. Edwards had some of his greatest success representing families of kids with cerebral palsy against the doctors who’d allegedly botched their deliveries — this despite a steadily mounting pile of research (see Feb. 27, 2003) tending to refute the popular theory that cerebral palsy is commonly caused by obstetricians’ conduct during labor and delivery. Last March, in a letter to the editor printed at this site, Mississippi physician S.W. Bondurant wondered whether the press would look into the question of whether Edwards’s trial wins were based on sound science. Now reporter Marc Morano of the conservative CNSNews.com takes on that assignment (“Did ‘Junk Science’ Make John Edwards Rich?”, CNSNews.com, Jan. 20). Just to clarify my own views, which are quoted at some length: I don’t assert that every lawsuit blaming obstetricians for infant brain damage is unfounded. The problem is that our system gives wide leeway for cases of debatable scientific merit to be filed and then, after a battle of the hired experts, decided by appeals to jury emotion. (& welcome visitors from sites including Kaus (Jan. 20), Sullivan, MedPundit, Rangel M.D., Blog 702, MedRants, and many others)

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