July 19th, 2011

Tort “Reform” Claims more Victims

Remember the Metrolink train crash from 2008 out in Southern California? It claimed the lives of 24 innocents people and injured over 100 more because a train engineer was texting while driving and missed a signal.

But Congress granted immunity for all claims over $200 million, forcing a local judge to make a Sophie’s Choice among victims, while the negligent corporation went skipping merrily away after paying the cap.

Andrew Cohen has the heartbreaking story at The Atlantic: The Real Victims of ‘Tort Reform’

 

July 2nd, 2011

July 2nd: A Day to Celebrate Independence (And Celebrate Juries)

Each year I have used July 2nd as  jury celebration day, as this is the day that the Continental Congress voted to liberate the Colonies from the Crown.  John Adams thought that this was the day that would be “solemnized with Pomp and Parade, with Shows, Games, Sports, Guns, Bells, Bonfires, and Illuminations from one End of this Continent to the other from this Time forward forever more.”

I see no compelling reason to re-invent the wheel and re-write  posts from years gone by about why the day is so important to the jury system. So here they are:

July 2nd: A Day to Declare Independence (And Celebrate Juries)

United States of America Declares Its Independence (Jury Trials Are One Reason)

Have a safe holiday one and all, but do take a few moments to read one of the greatest legal documents ever written, which sets forth the reasons our founders felt compelled to revolt against King George…

IN CONGRESS, JULY 4, 1776
The unanimous Declaration of the thirteen united States of America

When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected, whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.

He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

He has affected to render the Military independent of and superior to the Civil Power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

For quartering large bodies of armed troops among us:

For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States:

For cutting off our Trade with all parts of the world:

For imposing Taxes on us without our Consent:

For depriving us in many cases, of the benefit of Trial by Jury:

For transporting us beyond Seas to be tried for pretended offences:

For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies

For taking away our Charters, abolishing our most valuable Laws and altering fundamentally the Forms of our Governments:

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

He has abdicated Government here, by declaring us out of his Protection and waging War against us.

He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. — And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.

 

 

July 1st, 2011

In Praise of SuperLawyers

Now I know what you’re thinking with that headline: How could I have anything good to say considering that:

1. I had expressed complete ambivalence about SuperLawyers;

2. It had been bought by FindLaw and therefore, presumably created a conflict of interest?

Well, here’s the thing. They called me a couple months back as they prepared a story on the 10th anniversary of September 11th. There will be many such stories when the time comes, so that is not the part that impressed me.

What impressed me is that someone actually called me last week to fact-check the quotes for that part of the story I am in. And you know what? Very few media companies actually do that. I’ve been quoted many times in the papers. Often, I am unaware of it until publication actually occurs and Google Alerts tells me there is a Turkewitz mention.

But SuperLawyers did call. And so, though I’ve been critical of them in the past, I tip my hat to them today for doing something (fact-checking) that seems to oft times be lacking today in the media world. (The NYT running with my gig as White House law blogger does spring to mind, but it was not the only instance of a failure to check.)

If I’m going to be critical of a company, it is only right that I applaud them when they do something right. Fair is fair.

 

June 28th, 2011

Personal Injury Attorneys – Our Own Worst Enemy

A confluence of a couple different thing brings about today’s guest blog by H. Q. Nguyen. First, there was the terrific presentation by Brian Tannebaum down in Florida about online marketing and ethics. His talk runs 50 minutes and is time well spent, not only because you get to see a blogging lawyer in action doing what he does best — trying to pursuade a group of people by marshaling the evidence — but because his talk just might save one or two sad souls from selling themselves off to a demon marketer.

And second was the premier on HBO of Hot Coffee, which addresses many of the perceptions of the citizenry regarding our profession, and how it is that those perceptions were formed.

Nguyen brings home a point that should be evident to all of us concerning the damage some lawyers do with crappy marketing…

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I’m a personal injury attorney and proud to serve those who’s lives have been damaged due to negligence. Due to those in the profession, people are able to seek just compensation for their losses from those that caused it.

Yet the public perception of the typical PI attorney is that of a greedy, cheesy ambulance chaser who does nothing more than bring frivolous lawsuits causing their insurance premiums to rise as well as hindering societal progress. How can this be?

We can put part of the blame on the insurance companies who spend an enormous amount of money on tort “reform” and marketing in order to influence the public (and the jury pools).

But let’s start with a look in the mirror first. If we want the public to see who we really are, we need to first change the way we present ourselves.

For example, everyday, millions of New Yorkers ride the New York City subways on their way to and from work or wherever they are going. When the typical Joe looks up in the subway car, he sees advertisement from PI firms. Instead of the content conveying that the firm helps those recover for harms caused by the negligence of others, all Joe sees is dollars, millions of dollars. What does that ad convey to a typical viewer who earns $35,000 -$50,000 a year? What does that ad convey to Joe, who may be on his way to serve as a juror?

While these ads may be effective in bringing in clients for the firm who pay for these ads, it harms the profession as a whole. Until we police ourselves and reign in these dollar-centric ads, we cannot hope to change the public’s perception of our profession. We are in essence our worst enemy.

 

June 27th, 2011

Hot Coffee Tonight

Late last year I wrote about Hot Coffee, a documentary about the tort “reform” industry. The movie, which debuted at the Sundance Film Festival, included much about the McDonald’s hot coffee case where the late Stella Liebeck was scalded from the brew. I would tell you more about the case, except that you already know the story.

Or, perhaps, you only think you know about the story. Hot Coffee looks not only at that, but at why you think you know about the case and how the publicity campaign got you to form opinions. The move airs on HBO tonight. The trailer is here.

And this is the lede for a review by Hank Stuever from the Washington Post:

We get a lot wrong in our media-transfixed culture, where a wry quip and populist outrage almost always trump any understanding of complicated facts. But rarely do we get someone as wrong as we got Stella Liebeck.

Was the movie good? Steuver reaches this conclusion:

Unlike so many documentaries these days, “Hot Coffee” is refreshingly unadorned or manipulated for artistic or tear-jerking effect. It winnows down complicated legal arguments and anecdotal cases with compassion and clarity. It does everything a documentary can do — which, in terms of effecting change, isn’t much. But if nothing else, it has at least given Stella Liebeck what McDonald’s and Jay Leno did not: understanding.

So if you have HBO, it seems like this is something you might want to tune in to. Especially if you are on the other side of the aisle from where I usually stand. Because it isn’t just about coffee.

Other reviews of the film after it debuted at Sundance can be read here.