Articles Posted in Frivolous Lawsuits

A poll recently released by the Defense Research Institute found that an overwhelming majority of respondents found that our civil courts are fair.

Check out the DRI’s release here. Note that the headline says “41% Doubt Fairness of Civil Courts” when the article explains that 58% expressed confidence in court decisions.

There are other interesting nuggets here as well. 83% said that the side with the most money for lawyers usually wins. That’s really interesting in terms of personal injury litigation, where generally only one side has money for lawyers, and the other side only has a lawyer at all because of the existence of a contingent fee agreement.

One of the biggest names in the “legal blog” field is, primarily written and edited by Walter Olson. The site’s self-description states:

“ explores an American legal system that too often turns litigation into a weapon against guilty and innocent alike, erodes individual responsibility, rewards sharp practice, enriches its participants at the public’s expense, and resists even modest efforts at reform and accountability.”

I love the site, and read it nearly every day even though as a trial lawyer I am clearly on the other side of the debate. I often disagree with Mr. Olson, but over the years I have grown to respect the work he does.  He was even kind enough to speak one year to my Insurance Law class at the University of Baltimore School of Law.  We agree on more than I thought we would.  But, either way, I think Overlawyered is usually intellectually honest. One of the main things we see on Overlawyered is sharp critiques of lawsuits seen as frivolous or unfair.

Hot of the presses is a new “study” on “Tort Liability Costs for Small Business” from the U.S. Chamber of Commerce’s tort reform propaganda ministry, the dubiously named “Institute for Legal Reform.”

Your Sources Matter

miller-zois_0144-200x300This report wears the sheep’s clothing of objectivity, but an examination of the sources and methods it uses reveals the wolf beneath. Consider this:

Peter King is one of my favorite sportswriters. His Monday Morning Quarterback column for Sports Illustrated has a regular section called “Ten Things I Think I Think.” He is an intelligent guy and a better writer than me, so instead of coming up with an idea of my own I stole his. So here are some things I think I think (but I might be wrong):

Walter Olson points out that the $75 million liability cap in the Oil Pollution Act of 1990 does not override state law remedies that may apply to the BP oil spill. His point is that the $75 million cap in the federal law may not be the upper limit of BP’s actual liability, depending on the amounts recoverable under state law. Yeah, but lots of states have damages caps that apply to common law tort claims arising under state law. I do not know if Louisiana, Mississippi, Alabama and Florida have caps that would apply, but I think it’s an important piece of information to know if you are analyzing whether the damages cap in the federal law needs to be changed.

Many lawyers in Maryland (and elsewhere, presumably) believe that to be admissible, expert opinion evidence needs to be accompanied by some sort of magic words like “within a reasonable degree of medical certainty.” First, I think that is not the law. I think it is sufficient if it is clear that the standard is “more likely than not” for an expert in whatever field is applicable. And I think if the law is that some magic words are required, that is a stupid requirement that should be changed. It is clunky, cumbersome, overly technical, and a perfect example of lawyerspeak that clues the jury in to ignore whatever follows it. The court has just accepted the witness as an expert. It should be clear to everyone that his opinion testimony is offered as that of an expert in the field. Why do we go out of our way to make our legal proceedings as cumbersome, time-consuming and annoying for the jury as possible?

There is a man who lives in York, PA named Albert Snyder. His son was in the military, and was killed in the line of duty. When Mr. Snyder tried to bury his son in Baltimore County, MD, the funeral was picketed by members of the Westboro Baptist Church. They showed up with signs saying things like “God Hates Fags.” Apparently, they believe that U.S. military deaths are God’s revenge for our society’s tolerance of homosexuality. Mr. Snyder sued the Westboro Baptist Church and got an 11 million dollar verdict. This has been in the news recently because Mr. Snyder lost on appeal to the 4th Circuit, and was ordered to pay the church’s costs of about $16,000.

The same day, there was a $1.44 million dollar verdict in the Circuit Court for Baltimore County in a medical malpractice case. This was a death case. The defendant was an ER doctor who failed to diagnoses sepsis, leading to the death of the patient. Baltimore County is one of the most conservative jurisdictions in the state. Because of this, this verdict was also in the news.

Our local paper’s website allows comments, and I read the comments to both of these stories. The comments to the medmal story pillory the plaintiffs and their lawyers. The plaintiffs are called greedy, their case was called frivolous, and one commenter said it wasn’t fair because $1.44 million dollars won’t bring the dead man back. This is a case where a man died.

Here is a report about a New York lawyer who is helping a victim of horrific abuse. HT to Above the Law.

“Amy” was victimized by an uncle who used her as the star of child pornography. She has hired an attorney, James L. Marsh, who has had her evaluated, and has obtained expert reports showing the effects of the abuse on her, and documenting how much it has cost her in counseling, diminished wages, and lawyer fees. The total is about 3.4 million dollars.

Mr. Marsh has taken the position that every person convicted of posessing one of the images of Amy is jointly and severally liable for her damages. He has made hundreds of court filings seeking restitution on this basis. Many judges have agreed, although some have criticized this approach, arguing that the link between posessing a single image and the damages claimed is too tenuous.

You know why? Because reform is supposed to make something better, not worse. I am stealing the phrase “tort reform” back from those who would destroy injury victims’ rights for the sake of simple economic expediency. So here are John Bratt’s proposals for Maryland tort reform.

First, do away with the antiquated “contributory negligence” standard. In Maryland, if you are even a teensy, eensy bit negligent, you can never make a recovery in tort. “But wait”, exclaims a chorus of the uninformed, “that’s not fair- if you are negligent it is your own fault.” Oh really? What about a pedestrian who looks left, but not right and then a drunk driver runs him down? His fault, huh? Good thing Donte Stallworth ran that guy over in Florida, not Maryland. In our state, there is a good chance that guy loses his case against the drunk driver. Maryland should abandon this unfair standard and move to a contributory negligence system such as those in use in 44 other states.

Second, our legislature should appeal the “actual malice” standard to recover punitive damages. What this means is that in order to recover punitive damages, you must prove that whatever the defendant did was not only intentional but done out of specific ill will toward the injured person. There is a great illustration in the news right now. A 20-year-old college student, a pedestrian, was run down and killed by a repeat drunk driver, who then left the scene. It turns out, he was captured on various cameras driving erratically throughout the city before the fatal collision. That poor young woman’s family will not be able to recover punitive damages. Is that fair? This is a case where allowing punitive damages is not only morally right but would provide a benefit to society by showing that this conduct will not be tolerated n the community.

Connecticut has outlawed the practice of using “runners”– when crooked lawyers pay third parties to solicit injury plaintiffs either in person at hospitals or by going through police reports. These injured folks are then steered to crooked doctors, and the crooked lawyer helps them recover on the trumped-up claim.

Of course, I am sure that there are also genuinely injured people who are ensnared by these “runners” as well. The problem there is that they end up with the lawyer who uses runners, rather than with the most competent lawyer for their kind of case.

This is one of the few things that reputable personal injury lawyers, insurance companies, judges and legislators all agree on. This is a practice that is a harm to society, and brings the legal system into disrepute. Thankfully, this practice has been illegal in Maryland for many years.

We are always hearing about these evil, un-American frivolous lawsuits that threaten the very fabric of our society. OK, I get it. I dislike frivolous lawsuits as much as anybody. They devalue the claims of the truly injured, diminish the reputation of the plaintiff’s bar, and waste time and money.

But what about meritless defenses that are made against non-frivolous lawsuits? Two great examples today.

First, Eric Turkewitz writes about a New York defense attorney making the argument that pain is not a “personal injury.” Riiiiiight.