Overlawyered — Chronicling the high cost of our legal system
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Chronicling the high cost of our legal system
Overlawyered
November 18th, 2008 at 12:19 am
Update: lawprof drops suit against students
» by Walter Olson
Updating our Apr. 29 item: “A law professor who sued two former students for defamation has dropped his suit after the school’s interim dean said there is no evidence he is a racist. Law professor Richard Peltz of the University of Arkansas at Little Rock told Inside Higher Ed that he sued to get his reputation back. ‘This suit was never about money,’ he said. ‘I feel that now with the university’s support, I am on the road to repairing my reputation.’” (Debra Cassens Weiss, ABA Journal, Nov. 17). In Arkansas; free speech; law schools; not about the money
 Comments (0)
November 18th, 2008 at 12:08 am
Richard Epstein on Wyeth v. Levine
» by Walter Olson
The Chicago lawprof discusses the pending Supreme Court case on implied pre-emption:…it is folly to act as if the private lawsuits attacking FDA warnings just backstop a porous and lax FDA. Often those lawsuits add an unwanted deterrent against the sale of desperately needed drugs. That risk is multiplied by hyperventilated state tort law that, in many instances, is lopsidedly pro-plaintiff.(”Wyeth v. Levine Could Endanger Your Health”, Forbes, Nov. 11). Much more on the debate at Point of Law here, here, here, etc. In FDA; preemption; Richard Epstein; Supreme Court; Wyeth
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November 17th, 2008 at 8:00 pm
Alan Keyes sues Barack Obama
» by Walter Olson
From the farther shores of political lawsuit-filing, from a farther-shores kinda guy: “On November 13, Alan Keyes and his vice-presidential running mate in California, Reverend Wiley Drake, and other members of the American Independent Party, filed a new lawsuit over Barack Obama’s eligibility to be president. … All the other cases have been dismissed because the plaintiffs were said to lack standing. This is the first case with a presidential candidate-plaintiff.” (”Alan Keyes Files Lawsuit Over Obama Eligibility”, Richard Winger Ballot Access News, Nov. 16; Keyes v. Bowen, PDF; Scott Moss, Concurring Opinions, Nov. 17). In Barack Obama; politics
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November 17th, 2008 at 9:34 am
“Dr. Megaworkup”
» by Walter Olson
It’s enough to exasperate WhiteCoatRants (Oct. 20): …Utter the terms “chest pain” and “trouble breathing” in the same sentence and with some doctors you’re getting a chest CT. It doesn’t matter that you have a cough, runny nose, that the chest pain is burning and only occurs when you cough, or that half the people in town have influenza because they didn’t get their flu shots. Even if bronchitis is the clinical diagnosis, there is still a 0.0001% chance that you could have a pulmonary embolism along with your bronchitis and we don’t want to miss it, because if we do, it may cause you to die and result in a lawsuit against the physician. Some doctors aren’t willing to take even the 1 in 1,000,000 chance that they’ll be sued. …If a doctor doesn’t get every conceivable test on a patient and there is a bad outcome, then the doctor gets smacked with a lawsuit because the doctor didn’t do enough. Unless something changes, more and more patients coming to the emergency department will get megaworkups so nothing gets “missed.”Then I read that some pompous plaintiff’s attorney said somewhere that “defensive medicine” was a myth. His theory was that if doctors do an extra test that catches a disease while it’s still treatable, then it is “good medicine,” not “defensive medicine.” Either he doesn’t get it because he is ignorant or he doesn’t get it because that attitude helps him afford his chalet in the Swiss Alps.Medicine will never be perfect.While on the subject, prominent health economist Uwe Reinhardt has cited our medical liability system as an important reason costs are significantly higher in the U.S. than elsewhere (PoL, Nov. 16). And KevinMD’s excellent section on defensive medicine has numerous posts in recent months we still haven’t gotten around to linking, including: guest take by “Dr. SSS” on the “two most expensive words in medicine” (”Sometimes it is difficult for me to understand if I am really treating myself or the patient.”); background on the $210 billion estimate that has been bandied about; E.R. visit + chest pains = obligatory catheterization?; quote from PandaBearMD (”Why risk our own money when we can use somebody else’s to protect us, even if it costs millions?”; a British visitor’s view of immobilization collars; don’t put the doc’s name on the chart!; and more reader reactions (”even if a patient has a good relationship with a physician and is willing to forgo various diagnostic tests, the family can decide to sue later if there is a bad outcome. … it is far easier to just order the test”) In cardiology; defensive medicine; emergency medicine; emergency services
Comments (3)
November 17th, 2008 at 12:18 am
Mississippi: “Former state pathologist suing Innocence Project”
» by Walter Olson
“Dr. Steven Hayne, the man who performed most of Mississippi’s autopsies for 20 years, has filed a defamation lawsuit against The Innocence Project.” (Howard Ballou, WLBT, Oct. 30).Hayne has been criticized because he said he conducted about 1,500 autopsies a year, much higher than the recommended standard [of fewer than 250 -- ed.].His testimony in two murder cases from Noxubee County turned out to be inaccurate and both men convicted in those cases were released from prison earlier this year.One of the men had spent 15 years on Death Row for a crime he didn’t commit.A third man has confessed to both slayings.(”Investigation changes are needed”, Hattiesburg American, Oct. 22). As part of its campaign against Hayne, the Innocence Project sent more than 1,000 pages of material documenting its complaints to the Mississippi state medical licensure board and also denounced him to the national College of American Pathologists. (Jerry Mitchell, “Embattled doc suing Innocence Project”, Jackson Clarion-Ledger, Oct. 31). Radley Balko at Reason has been a longtime critic of Hayne (”Hit and Run”, Nov. 7), as has Lotus @ Folo. On Jun. 6, we reported on charges that Dr. Hayne’s forensic work has been of extensive assistance to plaintiff’s lawyers in Mississippi liability suits. In expert witnesses; Innocence Project; libel slander and defamation; medical; Mississippi
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November 17th, 2008 at 12:16 am
“Britain has no responsibility to protect Iraqis from their own legal system”
» by Walter Olson
Fun with international human rights law, continued:Lawyers for two Iraqis accused of the murder of two British soldiers now maintain that the men cannot get a fair trial in Iraq, and are entitled to one here in Britain instead. A High Court judge will rule on the case this week. Lawyers have already received several thousand pounds for representing the Iraqis, who, although not British citizens, have their case in the British courts funded by British taxpayers. Win or lose, the lawyers will receive more from that source. If the judge rules against them, they will no doubt appeal. The appeals process is lengthy, and lucrative. If they win, then there will be another issue to be litigated: whether the Iraqis should be given asylum in the UK, on the grounds that Iraq is not a safe place for the accused.(”Iraqi crimes have no place in our courts” (editorial), Telegraph, Nov. 16). In international human rights; taxpayers; United Kingdom
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November 16th, 2008 at 11:59 pm
Microblog 2008-11-16
» by Walter Olson
Tenth anniversary of Great Tobacco Robbery settlement of 1998 [NPR series all week h/t @billchilds; Carter Wood at PoL here, here, here, and here] #No need for “socialism” with endless bailouts instead [George Will, David Brooks] #Rude name for “age-restricted” (no-kids) housing developments: “vasectomy zoning” [Dr. Wes] #Iceland’s national financial calamity [Robert Jackson, Financial Times; Jon Danielsson, VoxEU] #World gone mad dept.: Saudi Arabia sponsors UN event on religious tolerance [Anorak, h/t @jeffnolan; Steven Groves, Heritage, on UN "defamation of religion" resolutions] # In international human rights; Saudi Arabia; tobacco settlement
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November 16th, 2008 at 12:09 am
American Apparel arbitration, cont’d
» by Walter Olson
A couple of weeks ago I did a brief post, and guestblogger Victoria Pynchon did a longer one, on the unusual sequence of events by which American Apparel and its founder Dov Charney settled a sexual harassment lawsuit for an agreement to pay $1.3 million tied to an (abortive) agreement to send the case to what a judge characterized as a sham arbitration designed to end favorably to the company. The company hadn’t at that point (so far as I know) responded publicly to the controversy, but shortly thereafter got its side of the dispute more or less on the record as part of a lengthy post at the blog Jezebel (Oct. 31). There’s also a related Oct. 30 item on the case at Portfolio. It quotes ubiquitous NYU legal ethicist Stephen Gillers, with whose views this blog is frequently out of step, who “said he found no real ethical problems with the ginning up of a sham arbitration to issue a press release. ‘The lawyers had no duty to insure that the public got the facts or that the issues were resolved based on a real trial before a real tribunal with real evidence.’” In arbitration; Stephen Gillers
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November 15th, 2008 at 1:59 pm
Nowhere to hide
» by Walter Olson
When your litigation opponent subpoenas your Facebook, Amazon, MySpace, Flickr, LinkedIn and (locked) Twitter pages (& Likelihood of Confusion). In discovery; Facebook; lawyering vs. privacy; MySpace; social networking; Twitter
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November 15th, 2008 at 12:26 pm
“Court Rejects Bid to Silence Mortgage Watchdog Website”
» by Walter Olson
A federal judge has declined to order mortgage watchdog website Mortgage Lender Implode-O-Meter to remove allegedly defamatory reporting about “the Grant America Program, a seller-financed down payment assistance program for low- to moderate-income homebuyers”. Sam Bayard at Citizen Media Law Blog has the details (Nov. 11). In libel slander and defamation; mortgages
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November 14th, 2008 at 11:59 pm
Microblog 2008-11-14
» by Walter Olson
Lawyers and other professionals who blog should read new Kevin LaCroix post “On Blogging” [D&O Diary h/t @SecuritiesD] #Daily H.L. Mencken quotes [courtesy @ahndymac] #Funny, earthy blog by urban emergency room nurse [Crass-Pollination] # @danimari Odd how ERs generate so many of the best medblogs e.g. WhiteCoatRants, ER Stories, Movin’ Meat, SymTym, GruntDoc etc. #Calm down, conservatives, Dems aren’t planning to revive Fairness Doctrine [James Rainey, L.A. Times] # Or are we sure about that? [Ed Morrissey, Patterico]Advice on jury selection: “don’t continue to poke a bee hive with a stick” [Texas Country Trial Lawyer, h/t @HouCrimLaw] #Video humor for font geeks [College Humor, h/t @sekimori] #Do you blog, tweet, send saucy emails or IMs? You may not be well suited for a job in the new admin [Caron, TaxProf] #@rebeccawatson of possible interest regarding litigious diploma mills [this site, Oct. 27, 2003] #Beautiful photos of New York in the 1930s [Flickr h/t @CoolPics] # In broadcasters; emergency medicine; jury selection; NYC; on other blogs
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November 14th, 2008 at 11:38 am
Gerry Spence to trial lawyers: “We are the most important people in America”
» by Walter Olson
The Wyoming-based legal gunslinger spoke at the annual conference of the Consumer Attorneys of California, and (U.S. Chamber-backed) Legal NewsLine took down some audience-rousing quotes that went pretty far even by grandiose Spence standards: “We are the most important people in America… I want to ask you which would be more important: If all of the doctors in the country somehow disappeared or all the trial lawyers in America somehow disappeared?” he asked. “We can live without medical care, but we cannot live without justice.” (Chris Rizo, “Spence: Trial lawyers more important than doctors”, Nov. 12). More from Dan Pero: “Was it just bad timing or some sort of cosmic justice that Mr. Spence made this preposterous claim on Veterans Day?” In California; state trial lawyers groups; Wyoming
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November 14th, 2008 at 9:38 am
“We cannot allow our brand to be abused”
» by Walter Olson
The “brand” in question is that of the late Rev. Dr. Martin Luther King, Jr. (Likelihood of Confusion, Nov. 13). In Martin Luther King; right of publicity
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November 14th, 2008 at 9:34 am
Banned for “dirty dancing”, wins $275,000 settlement
» by Walter Olson
North Carolina: “The town of Marshall agreed to pay $275,000 for banning [Rebecca] Willis from a community dance hall on allegations her moves were too risqué.” (Jon Ostendorff, “Woman walks with $275k in dance hall case”, Asheville Citizen-Times, Nov. 14 and Nov. 13; Jonathan Austin, “Lawyer says ‘dirty dancing’ case finally settled”, News-Record and Sentinel, Nov. 13). In North Carolina; taxpayers
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November 14th, 2008 at 8:24 am
November 14 roundup
» by Walter Olson
Pajamas TV interviews me on Obama cabinet prospects (RFK Jr., Caroline Kennedy, Schwarzenegger, Gorelick, etc.) (Nov. 13, subscription-only)Federal court in New Orleans hits attorney with five-year practice suspension after “intentionally contemptuous” filing and other misconduct [Times-Picayune, Ashton O'Dwyer]Lawyer sues his straying wife for giving him herpes, but her lawyer says a test proves she doesn’t have the malady in the first place [Above the Law]Doctors (e.g.) being put through hostile depositions are often tempted to talk back sharply to the lawyer. Bad move, says Ronald Miller [Maryland Injury]It’s a shame most of the press remains incurious about that episode a few days ago in which talk of compulsory national service appeared, then vanished from the Obama site [K. Ryan James]Batting cage pitching machine without prompting hits customer in most sensitive part of male anatomy, he collects $1.2 million [The Big Lead]ACLU will defend preacher sent to prison on parole violation charge after writing “God will smite this judge” newspaper article (having earlier been convicted of election misconduct)[AP/FoxNews, western Michigan]On appeal, Long Island attorney beats charges of coaching clients to fake injury and using “steerers” to gain business [NYLJ] In ACLU; Long Island; national service; New Orleans; on TV and radio; Robert F. Kennedy Jr.; sanctions
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November 14th, 2008 at 8:22 am
Employment lawyers “busier than ever”
» by Walter Olson
Massive payroll-slashing means more advisory work coping with the many legal pitfalls of layoffs, including the WARN Act, which is giving rise to a mounting docket of litigation; the law requires 60-day advance notice of many planned layoffs of 50 or more employees. The law has an exception for “unforeseeable business circumstances”, but “courts have not historically counted major economic downturns under that exception, attorneys say.” (Of course. What could be more foreseeable than sudden sharp economic downturns? That’s why it’s so easy to make money playing stocks!) Littler Mendelson expects October to be the busiest month in its history, and other management-side firms report big jumps in business as well (cross-posted at Point of Law). In workplace
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November 13th, 2008 at 6:41 pm
Liable for permitting customer to push overfilled shopping cart
» by Walter Olson
“Florida premises liability law appears to be generous enough toward plaintiffs that Home Depot could be held liable for the death of a customer who was allegedly struck by an overloaded shopping cart being pushed by another customer.” (Matthew Heller, On Point News, Nov. 11; complaint). In Florida; premises liability
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November 13th, 2008 at 9:48 am
San Francisco zoo tiger mauling victims sue
» by Walter Olson
The long-expected suit was filed in federal rather than state court, and one attorney speculates that the reason was to get more suburbanites on the jury panel, on the theory that they will be less hostile to the plaintiffs than San Francisco residents. Federal theory? Well, “Kulbir Dhaliwal contends his federal civil rights were violated because he was deprived the use of his BMW M3, the car the three took to the zoo.” The suit also accuses Sam Singer, a well-known crisis management spokesman whose firm was retained by the zoo after the attack, of libel and slander.The Dhaliwals contend Singer and city officials engaged in a smear campaign to suggest the young men were disreputable and had taunted the tiger before the escape.“There’s no merit to the lawsuit whatsoever,” Singer said. “More importantly, I’d like to remind people that [plaintiff's lawyer Mark] Geragos was the one who said his client, Michael Jackson, was a perfectly normal human being and Scott Peterson was an innocent man. I leave it up to the judgment of the public as to how accurate he is on any of his claims.”Watch out getting into a fight with a crisis management specialist, they have sharp tongues. (John Coté, “Tiger attack victims file suit in federal court”, San Francisco Chronicle, Nov. 13; more Chronicle coverage; earlier). In animals; San Francisco
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Previous Entries
Soronel Haetir on Richard Epstein on Wyeth v. LevineBob on “Pirates can claim UK asylum”gitarcarver on “Dr. Megaworkup”B.RAD on “Dr. Megaworkup”Kchaz on American Apparel arbitration, cont’dKchaz on American Apparel arbitration, cont’dBrad Ford on American Apparel arbitration, cont’dRon Miller on “Dr. Megaworkup”Mississippi: “Former state pathologist suing Innocence Project” on Mississippi forensics: corner-cutting coroners?Jaded Topaz on American Apparel arbitration, cont’d Update: lawprof drops suit against students Richard Epstein on Wyeth v. Levine Alan Keyes sues Barack Obama “Dr. Megaworkup” Mississippi: “Former state pathologist suing Innocence Project” “Britain has no responsibility to protect Iraqis from their own legal system” Microblog 2008-11-16 American Apparel arbitration, cont’d Nowhere to hide “Court Rejects Bid to Silence Mortgage Watchdog Website” "Will Aggregate Litigation Come To Europe?"New SSRN paper by NYU lawprofs Samuel Issacharoff and Geoffrey Miller (via Mass Tort Prof): This paper considers Europe's experiment with aggregate litigation in light of American experience. European thinking on the topic appears to have reached consensus on two... Walter OlsonMark Cuban insider trading chargesProf. Bainbridge has an analysis, and Prof. Ribstein has additional thoughts.... Walter OlsonJudicial selection and business, cont'dWriting at Slate, Bert Brandenburg of the Justice at Stake Campaign cites the recent election results as casting further doubt on many business advocates' crusade for partisan elections as a way of picking judges, and quotes my comments this summer... Walter OlsonMaster & Settlement: Budgets, bonding and bailoutsOut in the budget-beleaguered states, politicians are again eying distributions from the tobacco master settlement agreement -- 10 years on and still producing cash -- to ease their financial problems. Since it's public revenue raised outside the legislative process, drawing... Carter WoodMaster & Settlement: General Tobacco sues AGs, competitorsUpon the 10th anniversary of the tobacco master settlement agreement (see below here and here), we find the legal disputes carrying on. Indeed, it appears the settlement did more sparking than settling. Perhaps that's the inevitable result of addressing important... Carter WoodDoes the Anti-Gay Marriage Backlash Prove that Judicial Review is Ineffective? In recent years, leading scholars such as Michael Klarman and Gerald Rosenberg have argued that judicial review is rarely if ever effective in protecting rights that aren't supported by the political... Ilya SominBailouts and Slippery Slopes:An interesting post by Mario Rizzo (Think Markets).... Eugene VolokhThe Countrywide VIP Scandal:It's been widely reported that Countrywide Mortgage had a special VIP program that provided various discounts to well-connected elites who could help Countrywide politically, most famously Sen. Christopher Dodd.... David Bernstein"Human drama fills case called landmark on Internet":... Orin KerrRather’s Lawsuit Reveals Embarrassing Fact About CBS: CBS Was Fair in Picking Panelists for Its Outside Investigation of Rather. The New York Times has a story on Dan Rather’s lawsuit against CBS with the shocking revelation that the names of some potential outside investigators were vetted with Republicans. This... Jim Lindgren
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