Great Book on 'Tort Reform' (Corporate Welfare)

I’m reading an amazing book. Blocking the Courthouse Door: How the Republican Party and Its Corporate Allies Are Taking Away Your Right to Sue by Stephanie Mencimer.

The book talks about how the Chamber of Commerce has used a concerted effort over a period of twenty five years to take away people’s access to the courthouse. As a plaintiff’s attorney, I was aware of the basics, but she really does a great job of detailing how the Chamber of Commerce used tactics from the tobacco lobby. They also used ‘astroturf’ tactics from political situations, using ‘pretend’ grassroots organizations to show ‘popular’ support for a corporate cause.

You have to love a book that starts with the John Adams quote:

“Representative government and trial by jury are the heart and lungs of liberty. Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hounds.”

Stephanie also writes the excellent blog, the Tortellini, that gives tort reform update.

Other great articles by Stephanie include the following:

A lot of, lot of great information, and detailed investigative reporting from Stephanie. Thanks for fighting the good fight.

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Article on ATLA Name Change to American Association for Justice

The ABA Journal has published an evenhanded article on the ATlA name change: ATLA Trades ‘Lawyers’ for ‘Justice’. Chris Mather, ATLA’s communication director said:

"Some of the most powerful corporations have spent millions of dollars to dismantle the civil justice system," she says. "The Fight for Justice Campaign is exactly what it says it is."

David Ball was quoted as saying:

"Their decision to do this did not take into account the single biggest problem that trial lawyers already face, which is how the jurors who already don’t trust them are going to respond," says David Ball, a jury and trial consultant in Durham, N.C. According to Ball, approximately 30 percent of individuals in most jury pools distrust lawyers. They’ve been misled, he says, by tort reform groups.

I was quoted as saying the following:

David Swanner, a Myrtle Beach, S.C., plaintiffs lawyer, is also in favor of ATLA’s new name. "But I’m very proud of being a trial lawyer and being called a trial lawyer," he says. "I wouldn’t change that at all."

That was the only quote from a lengthy interview. But, if I could have picked the one quote, that would have been the one. It’s a good article and worth reading the whole thing.

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Another Look at Trial Lawyer's Images

This morning’s Hagar the Horrible by Chris Browne has a reminder of our image in the community. It starts off with Hagar and Lucky Eddie pulling guard duty in the middle of the night. Hagar shouts out:

“Halt! Who goes there – Friend or Foe?”  the response is:

I am just a friendly lawyer dedicated to helping the little guy in his unending battle against the forces of Evil, with no thought of personal gain whatsoever”. 

Hagar turns to Lucky Eddie and says


Ouch. And the worst part about it is that he didn’t use lies or misinformation. He used our own language against us. Double Ouch. Large corporations and their organizations have made a concerted effort to put down the jury system, which is the only method the average guy has to fight back against large corporations and the government.

But, the commercials of a few of our plaintiff’s brethren don’t help. The ‘Heavy Hitters’, the ‘Strong Arms’, the commercials for ‘One Call, That’s All’ don’t help us. If you don’t think we have a changed jury pool, then this comic strip should be a wakeup call.

It’s way past the time where we can tell people that we are doing good. We have to show them we’re doing good. We have to be willing to help people in ways where there isn’t a reward or payoff for the lawyer. Things like passing out bike helmets to children, buying copies of ‘To Kill a Mockingbird’ for junior high students, having fingerprint registration/identification for parents at County fairs…, providing information on the internet for people that need help. There are a ton of ways we can help and change public opinion.

Right now, ATLA is grappling with the issue of our image. That’s a good start. But it’s not enough to change our image. We’re no longer perceived as the good guys in white hats. We have to change what we do.

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Pennsylvania Cuts Workers Comp Rate by Decreasing Injuries

Business Insurance has this article on workers comp insurance decreases in Pennsylvania:

HARRISBURG, Pa.—The Pennsylvania Insurance Department on Monday approved an 8.6% average rate decrease for workers compensation policies incepting on or after April 1.

Pennsylvania Gov. Edward G. Rendell said the rate decrease will save employers in the state a total of about $100 million in premiums in 2006. The decrease marks the third time Pennsylvania has cut workers comp rates in four years.

The governor attributed the reductions to a statewide safety program his administration implemented three years ago for employers and employees.

Hmmmmm….. a statewide safety program. Less on the job injuries = less payments for job related injuries. What a radical concept.

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Pharmaceutical Companies Use College Cheerleaders to Boost Drug Sales

Well you learn something new every day. It’s no surprise that companies tend to hire good looking people for their sales team. But pharmaceutical companies are taking this to new heights by hiring college cheerleaders as pharmaceutical reps. They don’t look for

'They don't ask what the major is,' Mr. Williamson said. Proven cheerleading skills suffice. 'Exaggerated motions, exaggerated smiles, exaggerated enthusiasm - they learn those things, and they can get people to do what they want.'"  ….

…In an interview, Mr. Reidy remembered a sales call with the "all-time most attractive, coolest woman in the history of drug repdom." At first, he said, the doctor "gave ten reasons not to use one of our drugs." But, Mr. Reidy added: "She gave a little hair toss and a tug on his sleeve and said, 'Come on, doctor, I need the scrips.' He said, 'O.K., how do I dose that thing?' I could never reach out and touch a female physician that way."

I gotta tell you. I debated in high school, was an interrogator in the Army and am now a trial lawyer. I’m speechless (and this doesn’t happen often with me). If you want to know why I’m a plaintiff’s attorney, this is it in a nutshell. (Thanks to John Day of Day on Torts for the heads up on this).

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Stupid Lawsuit Against KISS' Gene Simmons Hurts Lawyers Image

Trial lawyers hate seeing headlines like this. Judge Allows Lawsuit Against KISS' Simmons. Let’s check out the details. During a ‘rockumentary’ retrospective of 30 years of KISS, we learned the following:

[Gene] Simmons says during the show, "There wasn't a girl that was off limits, and I enjoyed every one of them," Ward's court papers say.

At another point Simmons says, "I was a 24-hour whore. All I ever thought about was sex." This, court papers say, was shown and followed by a photo of Ward with Simmons.

Ward's papers say that because a photo of her with Simmons — though her name is never mentioned — was shown during remarks about his sexual adventures, she was in effect portrayed as "wild" and "unchaste."

Hmmm…..let’s see. In the 70’s, she was dating Gene Simmons the lead singer for KISS. Check. VH-1 shows a vintage picture of her from the 70’s when her and the lead singer of KISS  were dating. Check. Gene Simmons says he was a wild child and a very bad boy. Check. Check. That doesn’t seem to be lawsuit material, that seems to me to be a very big Duh. I would have sent the plaintiff packing and wouldn’t have even spent five minutes talking to her.

When cases like this come around, trial lawyers wince. It hurts the legal profession. It makes it harder for people that were hurt and have actual injuries to recover. A lot of these cases are filed by the litigants themselves or by public interest lawyers and not trial lawyers. So, I did a little bit of searching on the lawyer and I’m surprised by the results.

While Martha is not a member of ATLA, she’s a graduate of Yale and Georgetown Law School.and works for Morelli Ratner, which appears to be a solid plaintiff’s firm with 12 attorneys and the founding partner Benedict Morelli looks like he has quite a background as a trial lawyer.

Hmmm…. It sounds more like a shakedown than a lawsuit to me. (However, it is possible that the article has the facts wrong and there’s somehow more to the story than they’re telling).

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Anesthesiologists Work on Reducing Patient Errors

I was doing an internet search to find out more about the great work that the anesthesiologists had done in reducing patient errors and found this article from the Institute for Safe Medication Practices:

The 1999 Institute of Medicine report, To Err is Human, identified anesthesiologists as a rare exception to its sweeping criticisms about the lack of professional medical societies or groups that have demonstrated a visible commitment to reducing errors. And the high regard is well deserved. In 1985, the American Society of Anesthesiologists provided $100,000 to launch the Anesthesia Patient Safety Foundation (APSF). Despite some angst, the APSF decided to admit not just physician members, but also nurse anesthetists, insurers, and anesthesia equipment companies, bringing together a broad range of interdisciplinary stakeholders. The risk paid off.

Since then, the APSF has galvanized safety research and prompted significant changes in how anesthesia care is provided. From high-tech simulation mannequins that are used to help anesthesiologists recognize and respond to life-threatening conditions, to pulse oximetry, capnography, non-flammable anesthetics, and other safety features and practices that have been adopted as standards, the APSF has helped reduce anesthesia fatalities from 1 in 5,000 cases to 1 in 200,000-300,000 cases. As anticipated, better patient outcomes have also resulted in fewer lawsuits; anesthesiologists typically pay less for malpractice insurance today than 20 years ago.

Focusing on reducing medical errors, helped patient outcomes and there were less injured people suing for being hurt. Hmm…… People aren’t lining up, hoping to be injured so they can sue. Good for the anesthesiologists. I hope other doctors follow their lead. I know ATLA is starting to work on focusing the medical profession and legislation on reducing patient errors.

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Ken Suggs Article on the Problems with Vioxx

Ken Suggs, the current President of ATLA has an excellent op-ed article in the The State, the Columbia paper:

…Merck executives produced a document called “Dodgeball” to train their drug reps how to “dodge” questions from doctors about the cardiac dangers of Vioxx. Doctors who weren’t fooled by Merck’s deceptive marketing of Vioxx were targeted by the company. Merck worked to discredit these doctors and even threatened Stanford University scientists who questioned the drug.  … Continue Reading Posted inCorporate Welfare, Trial Techniques |Comments (0) |Permalink

Agencies' Rules Quietly Enable Tort Reform

The Washington Post today has an article on how Federal Agencies' are Changing Rules to  Quietly Enable Tort Reform:

"The Bush administration realizes it's impossible to get the broad-based tort reform the business community would love. There has been a conscious effort to take small steps," said Glenn G. Lammi, chief counsel of the Washington Legal Foundation , a pro-business public-interest group.

Let’s be clear about this. When they say ‘tort reform’, they mean take away the rights of injured individuals. What they are doing is saying that if a product meets the federal safety requirements, it will be by definition be considered safe. Hmmm… It seems like whether a product is safe or not, should determine whether it’s safe. One last quote from the end of the article:

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Evan Schaeffer is Speaking on Vioxx at AEI

Evan Schaeffer will be on a panel discussion on the panel discussion on the Vioxx verdict at the American Enterprise Institute. If you’re not familiar with the AEI, they are one of the leading conservative think tanks.

Notes from the program header read: 

The AEI Liability Project seeks to promote a better understanding of the scope and consequences of the liability crisis and to help ensure that political or legal reform efforts are aimed at the appropriate targets. (emphasis added).

From the AEI Liability Project Mission Statement:

Plaintiffs’ attorneys are suing on claims without tangible harms, with billions of dollars of judgments and settlements for injuries that are purely hypothetical;

Man. Billions of dollars on hypothetical claims?? That must be in another jurisdiction. Because if that was the case, I surely would have retired and would take my private jet down to the Carribean.

 Evan consistently invites dissenting opinions and voices on his blog. I admire his efforts at engaging the other side head on. Unfortunately, I don’t think there is any room for common ground. It’s not a question of finding consensus on ideas and working from there. These people are out for the destruction of the jury system. More on that later, but good luck to Evan and kudos for being a voice of reason on the panel.

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Legal Urban Legends Hold Sway - Los Angeles Times

The LA Times gets it right on it’s article Legal Urban Legends Hold Sway

Merv Grazinski set his Winnebago on cruise control, slid away from the wheel and went back to fix a cup of coffee.

You can guess what happened next: The rudderless, driverless Winnebago crashed.

Grazinski blamed the manufacturer for not warning against such a maneuver in the owner's manual. He sued and won $1.75 million.

His jackpot would seem to erase any doubt that the legal system has lost its mind. Indeed, the Grazinski case has been cited often as evidence of the need to limit lawsuits and jury awards.

There's just one problem: The story is a complete fabrication.

The story talks about the fictional Stella Awards that makes the rounds of the internet of outrageous lawsuits. All of the stories are made up and completely false. Whenever I receive one of these, I do a ‘Reply to All’ and send them information on how these stories are fake. If you want to show that the legal system needs improving (and what in life doesn’t need improvement), you don’t start off with lies. Congratulations to the Los Angeles Times for getting it right.

Of course, just because they are a complete and total fabrication, doesn’t mean that the stories aren’t poisoning our jury pools.

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Trial Lawyers Ads Create Image Problem

More on the LA Times about how the spokesman for the American Tort Reform Association says that lawyers create their own problems:

In fact, Schwartz said, over-the-top self-promotion by some trial lawyers have made the best case for the need for change. "Their ads making things seem as if it's just free money" have done "more to convince the American public that we have jackpot justice than anything put out by any tort reform organization — including the 'looney lawsuits' stories," he said.

Recent research shows that 40% of people get their info on lawyers exclusively from the media (TV, newspaper) - they have 40% unfavorable , 28% favorable impression. Twenty percent say that lawyer advertising are their main source of information about lawyers. This group has an 84% negative, and 10% positive impression of lawyers and the legal system.

Oof. We have met the enemy and he is us.

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New Category of Corporate Welfare

I’ve added a new category to deal with the corporate welfare and legislative interference with the legal system. This is commonly known as tort reform. Hmm….. Let’s look at the definition of the word reform:

  1. To improve by alteration, correction of error, or removal of defects; put into a better form or condition.
  2. To abolish abuse or malpractice in: reform the government.   or To put an end to (a wrong). See Synonyms at correct.
  3. To cause (a person) to give up harmful or immoral practices; persuade to adopt a better way of life.

So we have that the current legal system is an error or defect, or an abusive process or a harmful or immoral practice. Wow. Lets’ look at  some alternate definitions: Continue Reading Posted inCorporate Welfare, Trial Techniques |Comments (1) |Permalink