August 5th, 2022

The Alex Jones Bar Exam Trial

Some trials have simple legal questions. Some have complex ones. And then there’s the Alex Jones defamation trial winding up in Austin, TX, regarding his claims that the Sandy Hook massacre was a hoax. He’s been sued by parents of the kids.

Bar exams are an exercise in issue spotting. Issue determination is nice, but you can’t determine an issue unless you first recognize it is one. And Alex Jones, it seems, is a one-man bar exam with the explosion of issues surrounding this lawsuit. Some of the questions below may be easy; some not.

Were his statements about the massacre protected opinions or assertions of fact? If fact, were they reliably sourced? If defamatory, what standard would be used? Were the parents public figures?

Does the statute of limitations preclude suing on the statements? If some statements were made before after a statutory deadline lapsed, and related ones that are within the statute of limitations, can all of them be used in the suit or only the recent ones?

Was the judge correct in granting a default judgment in favor of the plaintiffs due to the failure by Jones to turn over discovery?

If there is a default judgment against Jones, to what extent can he still claim his statements were reliably sourced? If the plaintiff uses the poor sourcing of statements against Jones in pursuit of punitive damages, can Jones use the same statements in defense?

When Jones’ counsel inadvertently turned over the entire contents of Jones’ cell phone two weeks ago, was there an obligation by plaintiff’s counsel to alert Jones that there was privileged information on it? Did defense counsel properly object that the “oops discovery” should not be viewed when he emailed “please disregard”?

Did defense counsel commit legal malpractice in turning over the data? All of it or some of it? Does it depend on when he obtained it? Did he commit malpractice in failing to “snap-back” the privileged information within 10 days under TX procedural law? Can he snap back the non-privileged, yet irrelevant, parts? Did he commit malpractice in failing to object when some of it was used at trial? Could any of this be a proximate cause of injury to Alex Jones?

What happens to material on the phone that is not protected by a privilege, but is also wholly irrelevant to this case? Can the January 6th Committee obtain copies of inadvertently released “intimate messages” between Jones and Roger Stone?

Was any of Jones’ testimony perjury? Will the judge refer the matter to the DA? Will she level a contempt citation? If so, would it be redundant of any civil penalty that may come in the form of punitive damages?

When some of the information was used during trial, and Jones’ counsel failed to object, did Jones lose his right to appeal that particular issue?

When the judge found that plaintiff’s counsel acted properly by waiting 10 days under TX procedural law before using it, did that mean unrestricted use? Can he share any of it with others?

If some of the contents of the phone should have been previously disclosed, but weren’t, is there any additional sanction to levy against Jones on top of the default judgment against him?

When did defense counsel obtain the contents of the phone and what representation did he make to opposing counsel and the court about it? Could that subject counsel to a sanction on top of the default judgment sanction against the client? If so, will it come from the judge or a disciplinary committee?

Since some of the inadvertently disclosed material contained medical records for other Sandy Hook parents that are not involved in this suit, was there an ethical violation in defense counsel turning them over and then not properly retrieving them? Is it an ethical violation if the attorney was simply negligent in following procedure?

If the records were subject to a patient-doctor privilege, how did Jones’ counsel get them? Who sent them to Jones’s counsel? Was a confidentiality provision in another lawsuit violated? Or if the release came from a medical provider, a HIPAA violation?

What are the ramifications for the person that sent them? Is there a private right of action for the release of the privileged information? If so, would it fall under Texas law or Connecticut law, or the law of some other state where the records may have been conveyed from? Does HIPAA have a private right of action if errantly sent from a health provider?

What effect will the filing for bankruptcy by a Jones entity play in any verdict?

If the jury reaches a punitive damages verdict, what are the limits to it? Will it be state law or federal law that will be used to determine the limits? If federal law, how will the court apply the confusing determination in State Farm v. Campbell? Will the court use a ratio of 4:1 punitive:compensatory? A ratio of 9:1? The “no rigid benchmarks” standard? A ratio of 100:1?

How many other issues are there? And how many more are to come?

August 30th, 2012

The RNC Tells A Whopper

I suppose I should be used to by now: A political party making statements that are demonstrably false. And yet it continues, perhaps because those that value the falsehood make political contributions in order to perpetuate it. If you tell a lie often enough, people will believe it.

And so we turn to the Republican National Committee’s political platform and we look up what they have to say about tort “reform.” And what do we find? Rehashed falsehoods disproved by empirical evidence.

Let’s leave aside, for the moment, that the very concept of giving Big Government immunities and protections to those that injure others runs directly contrary to conservative political philosophy. Let’s deal with simple accuracy today, and turn directly to the Republican platform as it applies to tort “reform:”

Frivolous medical malpractice lawsuits have ballooned the cost of healthcare for the average American. Physicians are increasingly practicing defensive medicine because of the looming threat of malpractice liability. Moreover, some medical practitioners are avoiding patients with complex and high-risk medical problems because of the high costs of medical malpractice lawsuits. Rural America is hurt especially hard as obstetricians, surgeons, and other healthcare providers are moving to urban settings or retiring, causing a significant healthcare workforce shortage and subsequently decreasing access to care for all patients. We are committed to aggressively pursuing tort reform legislation to help avoid the practice of defensive medicine, to keep healthcare costs low, and improve healthcare quality.

The platform deals primarily with three issues:

Frivolous malpractice suits
“defensive medicine”
Lack of doctors in rural areas.

First, frivolous malpractice suits are losers. Because of the contingency system, those lawyers that bring them are destined for bankruptcy. They are marked “no pay” by the insurance carriers, vigorously defended by some of the best trial lawyers around, and any one foolish enough to bring them will find himself at the door of the bankruptcy court. Are there occasional frivolous suits? Of course. In a nation of 300 million people you will find frivolous business suits (biz brings 4x as many suits as individuals), Orly Taitz birther suits, defamation suits and all other kinds. But there is no data to confirm that the isolated cases are a major problem for society.

The issue is tough to study in the medical malpractice context by merely looking at medical records, since medical practitioners aren’t too keen on documenting their mistakes. Often, there is a simple question of fact for a jury: The patient says they made a complaint (lump in breast, floaters in the eye, etc.) and the doctor said not to worry.

But a study was done that showed most malpractice suits came from very few doctors. The study has been around since George Bush was president, yet it doesn’t seem to stop the perpetuation of the hoax of a malpractice crisis.

Next up, the concept of “defensive medicine.” That was disproved in a recent study in Texas, in which costs went up faster than the national average, despite brutal “reform” that closes the courthouse door to so many.

Which brings us to the last claim, that of a lack of doctors in rural areas. Well, it seems that doctors (and many others) don’t like to live in rural areas and want to live in the big cities and suburbs. But that isn’t because of malpractice cases. This too, was disproved by the Texas 2003 experiment in “reform, as more doctors did not come to Texas on a per capita basis in response.

When Mitt Romney speaks tonight will he repeat the falsehoods? There are just two reasons he might do so:

The healthcare and insurance businesses are some of the biggest in the nation, and they give tons of money to politicians;
Bashing lawyers is fun for the general public, because when we set forth the evidence in response to false statements we sound, well, like lawyers.

May 9th, 2012

Study Says Texas Medical Malpractice Tort “Reform” Is A Bust (Is Congress Listening?)

I’ve written before about the savage Texas medical malpractice “reform” that was implemented in 2003 and its inherent injustice. The premise was that if the state capped pain and suffering awards at $250,000 for doctors (no matter how many were liable) and $250,000 for hospitals, it would encourage more doctors to practice medicine in Texas. The cap was nominal, meaning it was not adjusted for inflation, so it remains at that stagnated level.

Now there is a study that debunks the premise of that so-called reform. And even tort “reformer” Ted Frank agrees that the report is so damning that he will no longer cite Texas for the proposition that such reforms will lead to an increase in doctors in the state.

The report is exceptionally damning to those who argued that providing protections and immunities to negligent doctors would bring more doctors to Texas (though I’ve often wondered what kind of doctors they were looking to bring in with that logic). The summary:

Before Texas adopted tort reform in 2003, proponents claimed that physicians were deserting Texas in droves. After tort reform was enacted, proponents claimed there had been a dramatic increase in physicians moving to Texas due to the improved liability climate. We find no evidence to support either claim.

That is a big, fat ouch for those that have supported government protections for tortfeasors.

The $250,000 cap that was enacted back in 2003 did have some affect, of course. It cut down medical malpractice payments by 70% and premiums by 50%. But this wasn’t the reason for the changes in the law, since claim payouts had been stable for the preceding decade. But claims will clearly drop under such circumstances as cases are difficult and expensive to bring, and if it isn’t a economically viable to bring the suits, lawyers won’t take them. It isn’t easy to risk tens of thousands of dollars of your own money and hundreds of hours over many years if the case isn’t substantial enough. The rent still has to get paid, as does the secretary, and the lights need to be kept on.

But did the 70% drop in payouts bring the flood of doctors? You would think so according to the initial reports (including from the New York Times) that looked at the increase in licenses being issued. According to the report:

Proponents argued that physicians were fleeing Texas because of lawsuit risk and high insurance premiums, but would stop leaving if the state adopted the reforms. After the reforms took effect proponents asserted that the reforms brought new physicians to the state in droves – a more impressive result than they originally predicted, which was only that doctors already in Texas would stay put.

But using data from 2003 up until 2010, the authors conclude:

There is no evidence that the number of physicians per capita practicing in Texas is larger than it would have been without tort reform.

The evidence has been brewing. In 2007, four years after reform, the Texas Observer ran a piece discussing the nonsense that was sold to voters by the insurance industry to get the bill passed, claiming that “doctors were fleeing Texas, leaving scores of counties with no obstetricians to deliver babies, no neurologists or orthopedic surgeons to tend to the ill.” This wasn’t true.

Also from the Observer, to get that bill passed Gov. Rick Perry and his minions from the Texas Medical Association argued in a flier mailed out in English and Spanish and posted in waiting rooms around the state that:

‘152 counties in Texas now have no obstetrician. Wide swaths of Texas have no neurosurgeon or orthopedic surgeon. … The primary culprit for this crisis is an explosion in awards for non-economic (pain and suffering) damages in liability lawsuits.’

Doctors to deliver your babies or lawsuits, they argued, which would you like? And you know what? Four years after the “reforms” were passed there were still 152 rural counties without an obstetrician. Because it seems that doctors, like many other professionals, happen to like living in urban areas.

The reports of an increase in doctors attributable to tort “reform” that came out, and are often echoed in Congress by advocates of establishing federal standards over the state tort systems, have not been accurate. The authors attribute this to the fact that the number of doctors going to Texas was rising before 2003 (as was the population as a whole), that researchers at universities should not be counted as they are unaffected by the issue, and that there was an increase in medical care after Hurricane Katrina in 2005 as people relocated.

And finally, the statistics showing an increase in doctors was based on new licenses being issued. But that didn’t take into account those that left the state or had retired. You can’t just count docs entering Texas healthcare without also accounting for exiting docs if you want to figure out whether the net population is increasing or decreasing. According to the authors, “using the number of licenses granted as a measure of the “success” of tort reform is potentially very misleading.”

The fact that the physician population was increasing before the “reforms” and continued to increase at the same rate after the “reforms” is very telling. The authors write, “There was neither an exodus before reform, nor a dramatic increase after reform.” How damning is this report? The authors go on to write about those who made the claims for “reform”:

When making the case for lawsuit restrictions and when claiming enormous post-reform success, the identified speakers made statements that were false. And, not just garden variety false, but “liar, liar, pants on fire” false.

And that my friends, is a whole lot of false.

The report is filled with facts and figures that shows that in the post-reform era, Texas has actually done worse at attracting doctors then the rest of the nation. Not better. And not even the same.

I end on this note: As I type, Republicans in Congress (it is always those that claim they want limited government that do this) seek to expand federal power and put nationwide damage caps in place. One of the prime reasons is that were used in Texas. And those that were used in Texas have now been debunked.

(P.S. For those that want to shift the argument to arguing that such reforms will lower health care costs, well, it doesn’t do that either. I covered that last year here: The Failure of Medical Malpractice Caps (Healthcare Costs Rise in Texas).

Elsewhere:

New Study Crushes Key Claim in Federal Medmal Debate (Andrew Cochran)

Did You Know… Medical Malpractice Lawsuits Are Declining? (Brett Emison)

November 11th, 2011

Rick Perry, Brain Farts, and Trial Lawyers

There was something deeply troubling about the reaction to Texas Gov. Rick Perry’s brain fart the other night during the Republican presidential debate. He said he wanted to whack three different federal agencies — Education, Commerce and Energy, but couldn’t remember Energy in the glare of the lights and pressure of the moment. He froze, and people have been yapping about the freeze ever since.

In chattering about the freeze, of course, commentators mostly missed the opportunity to talk about the substance of what he was proposing. The superficial trumped the substance. Yes, I know this happens all the time in politics, as it is easy for everyone to talk about a brain freeze while it might take some real thinking to discuss substance.

I felt bad for Perry, even though he isn’t my cup of tea. Anyone who talks in public — and trial lawyers do this so that is where I am going with this post — knows that this can happen. That’s why we work from notes.

But working from notes necessitates striking a balance. Because you never want to read to a jury or an appellate bench, unless you have to exactly quote something. If you put your nose in your notes, you lose the attention of the listener. So more notes means less likely to forget something, but also the danger of losing your audience. And vice versa. This is Trial Practice 101.

So we try to strike that happy balance. For me, when I open to a jury or make an appellate argument I try hard to use a rough outline that does not exceed one page, 14 point type. I use it to glance at. Summations are similar, except that I will read a few trial transcript bits to the extent I think critical. And I always apologize to the jury for reading.

In cross-examination, of course, you have to wrestle not only with what you want to bring out to the jury, but with what the witness is trying to do. Notes become even harder to use in that situation. And it is easy to lose a train of thought and suffer the dreaded brain fart when dealing with the subject matter, the witness, the form of and the question. You need to focus on the big picture and the nitty gritty at the same time, as well as the next line of questioning that you want to lead the witness to. Yeah, that takes practice.

Which brings me back to Perry. When you walk on a high wire those kinds of flubs can happen. But I wouldn’t want a juror to judge my case if it happened to me, and I don’t think folks should judge Perry based on his. Critique the substance, not the style.

Of course, if the points are really, really important, you might want to follow the Sarah Palin method, and write them down on your hand.

I think I’ll file this one under Trial Practice.

October 14th, 2011

The Failure of Medical Malpractice Caps (Healthcare Costs Rise in Texas)

Public Citizen released a report this week on the abject failure of a $250,000 medical malpractice cap put in place by Texas in 2003. Why is this is important? Because as I discussed two days ago, so-called conservatives are trying to expand federal power to implement a similar scheme on the federal level.

So it’s important to note that such a scheme fails not only on the constitutional level as viewed from exercising federal power over state claims, but that it fails on a state-wide level as well in that it does not lower healthcare costs as it was intended to do. It may lower the number of malpractice suits by its grant of protections and immunities to those that negligently injure others, but it doesn’t improve healthcare costs.

Most significantly, the report contradicts the “defensive medicine” theory, which holds that fear of litigation is to blame for stark increases health care costs. While the number of lawsuits plummeted, and with it the fear of being sued, Medicare costs rose 13% faster than the national average. According to the report, “health insurance costs have outpaced the national average and the percentage of residents lacking health insurance has risen.”

Some other findings:

Medicare spending specifically for outpatient services in Texas has risen 30.7 percent faster than the national average;

Medicare diagnostic testing expenditures in Texas have risen 25.6 percent faster than the national average;

Premiums for private health insurance in Texas have risen faster (51.7 percent) than the national average (50 percent);

The percentage of Texans who lack health insurance has risen to 24.6 percent, solidifying the state’s dubious distinction of having the highest uninsured rate in the country;

The per capita increase in the number of doctors practicing in Texas has slowed to less than half its rate in the years leading up to the caps;

The per capita number of primary care physicians practicing in Texas has remained flat, compared to a sharp increase in the years leading up to the caps; and

The prevalence of physicians in non-metropolitan areas has declined.

This is the synopsis of the report, from Public Citizen:

“A common perception among policymakers and pundits is that medical malpractice litigation is significantly, or even chiefly, to blame for skyrocketing health care costs and steadily diminishing access to care. But analysis of data in Texas, which in 2003 imposed some of the strictest liability caps in the country, tells a far different story. While litigation over malpractice in Texas has plummeted dramatically since the caps were imposed, residents of Texas (except for people with financial connections to liability insurance companies and, to a lesser extent, doctors) have realized few, if any, benefits. Instead, the health care picture in Texas has worsened significantly by almost any measure.”

The full report is here: A Failed Experiment; Health Care in Texas Has Worsened in Key Respects Since State Instituted Liability Caps in 2003

I had addressed the problems in Texas back in 2009 in this post: Do Texas Med-Mal Damage Caps Work? (What Do You Mean By Work?)

So the bottom line is this for medical malpractice caps: Injured people have the courthouse doors slammed in their faces; Those that are negligent are protected; There is zero benefit to the public at large; And insurance companies pocket most of the difference.