March 13th, 2011

New York Medical Malpractice Caps Getting Blasted (Round-Up)

I wrote last week of the folly of the $250K caps on medical malpractice pain and suffering awards that were recently proposed. That proposal is now getting blasted. Below are brief excerpts, and the reader is invited to click the links to get the whole nine yards instead of my little outtakes:

From today’s New York Times comes an editorial (Medicaid and the N.Y. Budget: A Bad Deal on Malpractice):

The proposed cap would apply to “non-economic damages.” Patients could still sue for the cost of their medical care, the value of wages lost and other economic costs. But their ability to recover damages for pain and suffering would be limited to $250,000 from every provider found guilty of malpractice. That hardly seems enough for patients who might face a greatly diminished quality of life because a negligent hospital or doctor left them blinded, paraplegic, brain damaged or gravely disfigured for life….

…The best solution is to greatly reduce the errors and bad outcomes that can lead to malpractice suits.

From Denis Hamill at the Daily News (Doctor with disabled son is no fan of governor’s plan to cap malpractice suit):

When Dr. Lora Ellenson, a pathologist at New York-Presbyterian Hospital Weill Cornell, looks at Gov. Cuomo’s proposed $250,000 cap on pain and suffering malpractice awards, she diagnoses the issue as a doctor – and as the mother of a son with cerebral palsy due to negligence….

…Had the Ellensons not won a malpractice award well above the proposed $250,000 she would have had to quit her job to stay home with her son every day…

…I ask Ellenson if she could have raised her son in a comfortable world on $250,000.

“Absolutely no way,” she says. “I continue to believe, as a practicing physician, that the way to curtail medical costs is not by further victimizing victims of malpractice, but to put in place mechanisms and systems in hospitals and doctors’ offices to minimize risk to patients.”…

From the Times Union of Albany (Let Juries Judge Malpractice):

If a baby is born with brain damage because the mother’s obstetrician doesn’t arrive at the hospital until hours after he’s called and no one on the hospital staff notices clear signs that the fetus is in distress, should that mother have the right to sue the doctor and hospital?…

…But proposals are now being put forth in New York — at the instigation of health care special interests. These proposals would limit our rights in such cases in significant ways. Instead of protecting us, they would protect negligent physicians and hospitals. And, in considering these proposals, there was no one at the table representing the victims of negligent doctors…

…Caps on awards are simply the health care industry’s way of insulating negligent doctors and hospitals, preventing their victims from receiving the compensation they deserve and removing the deterrent effect that justifiable awards can have. These proposals will not save the state money. They will not reduce Medicaid costs because Medicaid does not fund malpractice awards. (more)

From the PopTort (How Hospital Lobbyists and Execs Can Get Carte Blanche To Rewrite Your State’s Civil Justice System!):

Here is our latest “How To of the Day” submission to WikiHow:

If you are a wealthy hospital executive or lobbyist and want to do something extra special for your members, like protect them when they kill or injure children, things may be looking up for you in states where the GOP has taken over. But what about a State like New York, where the legislature (or at least part of it) actually cares about protecting the rights of the sick and injured and ensuring patient safety? This is not so easy! But get ready, cause there’s a solution:

From Joanne Doroshow, Center for Justice and Democracy (NY Hospital Execs Try to Change Medicaid Rules Behind Closed Doors):

Whatever has been going on behind the closed doors of Governor Andrew Cuomo’s Medicaid Redesign Team,loaded with self-dealing lobbyists and hospital executiveswho make Wall Street level salaries, it’s time for New Yorkers to say enough.

Many have already complained about how this Team has been dominated by hospital and industry lobbyists, with consumer or patient advocates mostly excluded. Now we find out that these lobbyists are using this process not to save Medicaid money, but to execute a backroom deal that could create a financial windfall for negligent hospitals, incompetent health care providers and their insurance companies….

And what do the proponents of tort “reform” offer? They trash trial lawyers. One classic example comes from the constantly lawyer-bashing New York Post. Incapable of mustering actual public policy arguments, it reverts to calling anyone that represents a patient an “ambulance chaser.” That’s what you do when you can’t defend your position, you wage personal attacks. The medical malpractice hoax was exposed long ago. It also ignores the fact that the New York State Bar Association, which includes both defense and plaintiff’s lawyers among its ranks, trashed the “reform”arguments big time.

If you are aware of intelligently written pieces on the subject, preferably newspaper editorials,please let me know.

March 2nd, 2011

New York Sacking 300 Judges (Or Is It Only A Forced Sabbatical?)

New York Chief Judge Jonathon Lippman, tasked with the miserable job of cutting 300 judges loose.

New York Chief Judge Jonathan Lippman released a statement earlier today stating that, due to budget cuts, there may be substantial layoffs in the state court system. And it now appears that all of the state’s Judicial Hearing Officers will be be taking a forced sabbatical. There are 300 former judges that work in this role that will be taking a vacation from which they may not return.

The courts had previously submitted a budget to the state for $2.7 billion. As a result of a request by Gov. Andrew Cuomo, however, that is now being cut by $100 million. According to Judge Lippman’s statement this morning:

As a result of this review, we are taking further austerity measures for the coming fiscal year that will result in additional savings of $100 million to the State. We will achieve this target through continued reductions in the court system’s workforce, including a hard freeze on hiring, layoffs of administrative and other non-operational personnel if necessary, and programmatic efficiencies — re-examining all non-personal service expenditures, including programs such as Judicial Hearing Officers, Town and Village Court assistance, the Judicial Institute, legal reference materials, and the like.

In an interview with the New York Law Journal after the announcement earlier today, Judge Lippman merely speculated about the loss of the JHO program:

He said in the interview that the entire judicial hearing officer program might have to be scrapped. The program employs some 300 retired judges who issue orders of protection, preside over jury selection in civil trials and otherwise relieve judges of some duties.

JHOs are paid $300 per day for their services and the program costs the state about $7 million a year, according to [Chief Administrative Judge Ann] Pfau.

But the information that I am getting out of the Bronx County Bar Association is that not only is this a done deal, but it will take place on April 1st. Whether this will be a one year hiatus or a complete closing of the program remains unknown.

Perhaps the most notable of the Judicial Hearing Officers that may be forced into retirement is 82-year-old Ira Gammerman, a former Supreme Court Justice that hit the retirement, and a long time fixture downtown at 60 Centre Street (easily one of the most famous courthouses in the nation). He acts there now in his JHO status as a sort of judicial traffic cop, sending lawyers out to pick juries when their cases come up and then assigning them to judges for trial after selection. And woe unto the lawyer who isn’t prepared, as he has a reputation of dismissing their cases on the spot. He also has continued to try cases he finds interesting if he can get the consent of the parties.

He hasheard from the best (and worst) trial lawyers in the city. He has no problem seizing the questioning from the lawyers to cut to the chase, and his familiar squint into his laptop as he sits on the bench is a familiar site to the thousands of lawyers and litigants that have passed through his carpeted courtroom. Both my father and I have taken cases to verdict in front of him (as has most anyone who is anyone who tries cases in this city).

Judge Gammerman has heard numerous high profile cases, often complex medical malpractice and commercial matters. He dismissed a large part of the Dan Rather v. CBS defamation case and tossed the case of Rosie Donnell against her publisher of Rosie magazine, where they had sued each other. Joan Collins and Leona Helmsley have appeared before him, and just month ago, the younger brother of the Sultan of Brunei came to defend his x-rated statues. Perhaps most famously, he told Woody Allen to “stop talking” because, “‘I’m the director here.”

The effect of losing the JHOs is sure to slow down the administration of justice, as judges are forced to tend to more ministerial matters that the JHOs were previously handling.

What will happen to all of these former judges? Someone will return to private practice in big firms as potential rainmakers. But my guess is that most will pour into the private arena of alternate dispute resolution. Whether they come back in a year — if the JHO program is restarted — remains to be seen. But it is clear that our judiciary is about to see a significant brain drain and the state’s litigants and bar will see a slower administration of justice.

March 1st, 2011

New York To Cap Medical Malpractice Awards? (An Open Letter to the Legislature)

Dear New York State Legislators:

Deeply hidden from public view inside a report from the New York State Department of Health is a proposal to place an artificial $250,000 cap on medical malpractice pain and suffering claims. That report was given to Gov. Andrew Cuomo last week. The proposal is tucked inside something called the Medicaid Redesign Team, and was authored by insurance companies and medical institutions. There were no patient representatives on the committee.

You should soundly reject this anti-consumer bill on both public policy and monetary grounds.

First, a quick review of our current system before we get to the policy stuff: New York already has caps on personal injury cases for those runaway verdicts you see in the papers from time to time. These are not artificial, one-size-fits-all caps, but caps that are specifically geared to the individual cases. New York has successfully been doing this for almost 200 years for verdicts that are unreasonable, since Chief Judge James Kent wrote the following in Coleman v. Southwick in 1812:

“It is not enough to say, that in the opinion of the court, the damages are too high and that we would have given much less. It is the judgment of the jury, and not the judgment of the court, which is to assess the damages in actions for personal torts and injuries….The damages, therefore, must be so excessive as to strike mankind, at first blush, as being beyond all measure, unreasonable and outrageous, and such as manifestly show the jury to have been actuated by passion, partiality, prejudice, or corruption. In short, the damages must be flagrantly outrageous and extravagant, or the court cannot undertake to draw the line; for they have no standard by which to ascertain the excess.”

The standard is no longer “flagrantly outrageous and extravagant.” Now it reads, “deviates materially from what would be reasonable compensation” that is codified in section 5501(c) our Civil Practice Law and Rules:

In reviewing a money judgment in an action in which an itemized verdict is required by rule forty-one hundred eleven of this chapter in which it is contended that the award is excessive or inadequate and that a new trial should have been granted unless a stipulation is entered to a different award, the appellate division shall determine that an award is excessive or inadequate if it deviates materially from what would be reasonable compensation.

So a complainant not only needs to win the case before the jury, but that verdict then gets reviewed by the trial judge and then can be reviewed again by an appellate court. In other words, the system we currently use has a both a belt and suspenders to keep it from falling down.

What is the advantage of changing a system that isn’t broken? Well, by limiting the right to a trial by jury, it gives a healthy dose of immunities and protections to those that committed the wrongful acts. Is that an advantage? It is if you are the one trying to evade responsibility for your conduct.

If the artificial cap is in place, the injuries won’t be diminished. The only thing that will change is that the economic burden of those injuries will be borne by the victim instead of the party that caused them. Is it sound public policy to victimize the injured person a second time? Is it good public policy to discard the concept of personal responsibility?

At the moment, only the most severe injuries are the subject of malpractice suits. This is true for two reasons. First, the suits are very expensive to bring. There is little point bringing an action whose reasonable value might be $50,000, if it will cost that much in experts, records and depositions to get to verdict. And second, New York currently has some of the lowest attorneys fees in the nation as a result of “reforms” you enacted in the mid-1980s. Those fees start at 30% of the first $250,000 and rapidly slide down to 10% of anything over $1.25M. In other words, complex and expensive malpractice cases have lower legal fees than the norm, causing a predictable drop in the number of attorneys willing to undertake the difficult cases.

The result of that “sliding scale” fee structure is that doctors and hospitals in New York already enjoy a significant amount of immunity from medical malpractice cases. It is simply not cost effective to bring many of the actions that present themselves to our doors, even if they appear to have merit. Most lawyers that practice in this area, myself included, will reject at least 95-98% of the inquiries to the office.

The insurance companies and medical profession now ask you to give them a second giant helping of immunity by eviscerating the pain and suffering damages. The ones that will be hurt, of course, are those who have been most seriously hurt. It will have no effect on frivolous cases, as they do not have a value over $250,000. They have a value of zero.

And it isn’t as if granting such immunities and protections will lower the incidence of malpractice, which already causes up to 98,000 deaths a year according to the Institute of Medicine. If the government wants to cut Medicaid costs, and cut lawsuits, the efforts must be devoted to safety, not killing patient rights. Telling people they can act with impunity doesn’t increase safety.

If the top pain and suffering award is only $250,000 — which sounds like a lot if you grew up in the Great Depression but means quite a bit less when a surgeon wants $5-10,000 to come in to court and testify for a morning — the effect will be courthouse doors being slammed shut in the faces of many people. Any case with even modest complexity will be rejected by attorneys, and the victim left to suffer without compensation.

And not only is this lousy public policy, but it also makes no economic sense. What happens to someone crippled by malpractice? Generally, they can’t work anymore or raise their children if they have them. They also may be uninsurable due to their pre-existing conditions. Who pays when the injured person is poor? That’s right, the public does in the form of tax dollars going to various welfare and Medicaid programs.

But if Big Hospital, Inc. commits malpractice and injures someone, why should the taxpayers be saddled with these burdens? Why shouldn’t the hospital be paying for the damage it caused? Ultimately, of course, someone will pay, and it sure makes more sense that the one that did the damage should pay the bill and not the victims or taxpayers.

Were you worried about the costs of malpractice to medical care? Don’t worry too much. For the costs are less than 1/2 of one percent.

In sum, this proposal crafted by insurance companies and medical institutions is not only anti-consumer, but will saddle taxpayers with burdens caused by others. It makes no sense on public policy grounds or economic grounds. There will, however, be a windfall profit for the insurance companies and those doctors that hurt the most people and make the biggest mistakes.

For more on the subject:

State Bar Blasts Proposal to Cap Medical Malpractice Awards (New York Law Journal)

The New York State Bar Association and its president yesterday blasted a recommendation by Governor Andrew M. Cuomo’s Medicaid reform task force to cap medical malpractice awards for non-economic losses at $250,000.

Such caps are “anathema with respect to equal protection/access to justice,” the state bar’s Committee on the Tort System said in a memo in opposition to the Medicaid Redesign Team’s recommendation. The memo was endorsed by the bar’s executive committee….

How New York Caps Personal Injury Damages

…So why put arbitrary caps in place if common sense ones already exist? Because the movement to do so has nothing to do with finding justice, but rather, is run by big business and its front groups such as the U.S. Chamber of Commerce to give negligent conduct various forms of immunities and protections when folks are injured. The idea is to remove the concept of personal responsibility for one’s actions…

Medical Malpractice Insurers Price-Gouged Doctors During This Decade

Americans for Insurance Reform (AIR) announced today the release of Stable Losses/Unstable Rates 2007, a new study that examines fresh insurance industry data to determine what caused the most recent medical malpractice insurance crisis for doctors. The study by AIR, a coalition of over 100 consumer and public interest groups representing more than 50 million people, finds that the insurance crisis that hit doctors between 2001 and 2004 was not caused by claims, payouts or legal system excesses as the insurance industry claimed….

Medical Malpractice Economics

Two weeks ago I wrote Medical Malpractice – A Primer, directed toward members of the medical community due to a recurring theme I saw on medical blogs: The idea that such suits are brought cavalierly….

I promised a follow-up on how cases are selected by a plaintiff’s attorney, but first want to deconstruct the time and money needed if the matter is taken. For only by understanding the time and money risks can one appreciate the importance of careful screening for potential litigation…

The Medical Malpractice “Crisis” Hoax — From Public Citizen

…Good doctors, however, don’t seem to be the problem. Since 1991, according to the report, 5.9 percent of U.S. doctors were responsible for 57.8 percent of the number of medical malpractice payments. That is an extraordinary statistic.

A few other points from the report, and things to think about when someone advocates closing the courthouse door to those injured by negligence:

The number of malpractice payments declined 15.4 percent between 1991 and 2005.

Adjusted for inflation, the average annual payment for verdicts declined 8 percent between 1991 and 2005.

Payments for million-dollar verdicts were less than 3 percent of all payments in 2005.

Over 64 percent of payments in 2005 involved death, or major or significant injuries.

First, do no harm

…Two recent studies make it clear those policies have not been widely adopted. Last November, both the New England Journal of Medicine (NEJM) and the inspector general for the Department of Health and Human Services published results of studies showing that the level of risk to patients in our nation’s hospitals is at crisis levels, with hundreds of people dying daily from medical errors…

Do Texas Med-Mal Damage Caps Work? (What Do You Mean By “Work”?)

…But what, exactly does it mean for a statute to “work” when it reduces the ability of the most badly injured individuals to recover for their loss?

Does offering government protectionism for tortfeasors mean it works?

Does stopping those who’ve been victimized from recovering from their loss mean it works?

Does destroying the concept of personal responsibility for one’s actions mean it works?

If the objective is to offer windfalls to those whose negligence has injured others then one might say it works. But that doesn’t makes it good public policy…

Child’s Feet and One Hand Amputated After Emergency Room Delay (California Tort “Reform” In All Its Glory)

…For out in California, they enacted a one-size-fits-all tort “reform” with a cap of $250,000 on non-economic damages (pain and suffering). The state did this in 1975. And it hasn’t changed in the last 35 years. Adjusted for inflation, it would be about a million dollars today. But it has never been adjusted.

That’s right, a lifetime of missing three limbs, if she survives, and this child might receive compensation of $250,000 for her pain and suffering. Less, of course, the money spent to hire the experts, take the depositions, get all the records, and get the case to trial after a few years, and paying the lawyers to do it. Assuming that lawyers can be found to put forth the money and absorb the risk for a contingent fee….

Does the Tea Party Believe in Conservatism or Tort “Reform”? (8 Questions)

As the Tea Party movement gains more attention, some folks want to know exactly what they believe in. Today’s question: Do they believe in a smaller, less intrusive, government or will they follow the Republican Party down the path of Big Government Tort “Reform”?

Since the Tea Party is a nascent and disorganized collection, I’m tossing out eight questions for those conservatives in the movement to ponder as they decide which side of the tort “reform” debate they are on…

February 27th, 2011

Lawyers and Courtrooms and Movies (My Top 11)

The Oscars are tonight. Cue the applause.

OK, kill the applause. Most Hollywood stuff seems geared to how it can suck the most money out of moviegoers, without regard to quality. That’s why we see so many godawful sequels and “franchise” films. Cue the cynicism. It seems more appropriate.

Nevertheless, as the decades roll by, Hollywood has managed some memorable lines out of lawyers and courtrooms. And these are my top 11, because any schmo can do a Top Ten (and because, as they say in Spinal Tap, 11 is one louder than 10):

1. Al Pacino as Arthur Kirkland in …And Justice For All (Trailer):

I’ve just completed my opening statement.

2. Spencer Tracy as Henry Drummond in Inherit the Wind (Spencer Tracy Courtroom speech)(Trailer):

The Bible is a book. It’s a good book, but it is not the only book.

3. Joe Pesci as Vinny Gambini in My Cousin Vinny (trailer):

I’m finished with this guy.

4. George Voskovec as Juror #11 in 12 Angry Men)(trailer) – The exterior courthouse shot, by the way, is Supreme Court in Manhattan where I tried my first case, and it looks the same today:

He’s right. That’s not an answer. What kind of a man are you? You have sat here and voted “guilty” with everyone else because there are some baseball tickets burning a hole in your pocket? And now you’ve changed your vote because you say you’re sick of all the talking here?

5. Gregory Peck as Atticus Finch in To Kill a Mockingbird (Trailer):

You never really understand a person until you consider things from his point of view… Until you climb inside of his skin and walk around in it.

6. Denzel Washington as Joe Miller in Philadelphia (trailer):

Now, explain it to me like I’m a four-year-old.

7. Julia Roberts as Erin Brockovitch in Erin Brockovitch (trailer), on signing up all the clients:

Well, um, seeing as how I have no brains or legal expertise, and Ed here was losing all faith in the system, am I right?…I just went out there and performed sexual favors. Six hundred and thirty-four sexual favors… I’m really quite tired.

8. Jack Nicholson as Col. Jessep in A Few Good Men. (Speech from the witness stand, “You want me on that wall.”):

You can’t handle the truth!

9. Woody Allen as Fielding Mellish in Bananas (courtroom scene):

I object, your honor! This trial is a travesty. It’s a travesty of a mockery of a sham of a mockery of a travesty of two mockeries of a sham.

10. Timothy Bottoms as Hart and John Houseman as Kingsfield in The Paper Chase (Clip)

Hart: You… are a SON OF A BITCH, Kingsfield.

Kingsfield: Mr. Hart! That is the most intelligent thing you’ve said all day. You may take your seat.

11. José Ferrer as Barney Greenwald in The Caine Mutiny (though the clip is Humphrey Bogart as Captain Queeg falling apart on the witness stand):

I don’t want to upset you too much, but at the moment you have an excellent chance of being hanged.

Yeah, I’m sure you have think there are others that are better. Perhaps Groucho and Chico Marx in Duck Soup and Chicolini’s trial for treason, or the Note from the jury in The Verdict, asking if they could give more in damages than had been asked for (trailer). And maybe a dozen more…feel free to let me know…

February 22nd, 2011

Blogs as Primary Research Tools For Lawyers

John Hochfelder, guru on the value of injuries as defined by New York appellate courts

It’s now happened to me three times in three months. There I was at John Hochfelder’s New York Injury Cases Blog doing research on damages, before I turned to the usual suspects of Westlaw or the New York Jury Verdict Reporter.

This posting isn’t just about Hochfelder’s blog, but also about how useful blogs can be as primary research tools, even as the New York Times discusses a decline in blogging in some sectors.

First let’s talk Hochfelder. He started his blog in December 2008, dedicated to filling a void in appellate law. He saw many decisions come regarding the excessiveness or inadequacy of jury awards, but these decisions were often empty of an actual analysis of the injuries. This made it virtually impossible to determine why the appellate court sustained or stuck the jury award, and therefore useless to cite for future litigants looking for similar cases. Yet those decisions form the heart of how our judiciary sets both minimum and maximum caps on damages.

Hochfelder has often railed against the appellate judiciary on this issue. Back in March 2009 he wrote about one case where a $2.6M verdict was reduced to $1.35M without explanation:

Failing to give the public facts upon which appellate courts reach their decisions as to pain and suffering damages is unfair both to the lawyers who rely upon the appellate court decisions for precedent and to non-lawyer citizens (by whose tax dollars, after all, the judges are hired and paid). We are all entitled to know how these august bodies make their decisions.

So Hochfelder does an analysis of those decisions by pulling appellate briefs, talking with the lawyers involved to get background information, and using illustrations to show the reader what, for instance, a torn ACL might actually look like. He may also supplement with lower court rulings, some of which are unpublished.

Then he drops them into neat categories in the sidebar. Want to know what the courts have done with other knee injuries? Presto, you have the decisions, briefs, illustrations and often the inside poop on what really happened from the lawyers involved. A quick look at the knee injury category and you will see what I mean.

Contrast that with blogs such as mine that dwell on analysis of stories in the news (ex: Bloomberg on tort reform) or differing types of appellate decisions (ex: “elective” amputation, $1M loss of consortium claim). Sometimes a blog such as this can break news (ex: Dominic Barbara, Takara Davis). But breaking news is a one-off type of thing, since most law bloggers have real jobs where we spend our time. Other times we may comment on people in the news related to law suits (ex: John Ritter, Dennis Quaid) or discuss political issues (ex: Will Congress support the constitution when it comes to tort reform?).

Hochfelder, however, has for two years been quietly and steadily building a database of cases and more cases, leaving aside popular stories that oft times generate inbound links, in favor of analyzing scores upon scores of New York injury cases. And because he stays faithful to his niche, finding exactly the kind of information you need, assuming such information exists, is easier on his site than anywhere else.

And this isn’t just my opinion. For after I found myself repeatedly returning to use the blog, I asked other New York PI lawyers if they were also using it. And they have. Let’s look at four responses before turning to the larger issue of blogs:

This response from David Roth mirrors my own thoughts:

The blog focuses on those things which are important to me in looking behind the mere reports and goes into detail about the basis for the numbers that are awarded or sustained. I have used it to explain injuries and compare the amounts awarded at trial to the amounts that the Appellate division reduced or sustained.

It differs from west and lexis in that it has information in an easily searchable format with pictures, diagrams and information that goes beyond the decisions. Often there are quotes from briefs which are intuitive to a personal injury lawyers needs, which saves me time from having to figure it out myself. The jury verdict reporter does not concentrate on sustainable numbers. The blog gets me the info I need without forcing me to do the extra research.

And attorney Steve Skor says:

We have used it to great effect on several high end negotiations. Judge [George] Silver was very impressed recently by a presentation we created relying heavily on the blog in a case. Helped get what I considered to be a very big settlement on an ankle fracture case with serious “issues.” The adjuster constantly looked at defense counsel as to say “Where is your authority to refute plaintiff’s numbers,” every time they said we were too high. A great resource.

From Stephen Frankel:

I’m on it at least once or twice a week. The blog saves a huge amount of time and gives excellent direction with respect to P&S values….Hochs blog is the best in NYS for valuing injuries and it is quite simply a fantastic research tool.

And one more, from Howard Trepp, before I turn to the essential point of this posting:

The Hoch blog is the first place to look for information on the value placed on injuries in the courts of the state of new York. Well organized, it is the most comprehensive source available to determine what the new York appellate courts deem fair and reasonable compensation for personal injuries.

Now on to the larger point. There are some people who think the legal blogosphere is saturated, and really can’t tolerate more. Not so. While there may be too many faux blogs that blast news of the latest car accident or DUI in the hopes the people involved will hire them (which is of questionable ethics), there is always room for more quality content. Just because the ABA Journal lists 3,000 law blogs doesn’t mean all of them are good. Or current.

Looking at my own niche, I know that I write only 1 out every 5-10 pieces I would like to write. It isn’t for lack of interest, but lack of time. Now magnify that by all the different practice areas and all the different states. What is lacking, of course, is finding more Hochfelders who can figure out how to organize the data into useful searchable form, and put in the time to do it. The resource is valuable because it is hard data, not an accumulation of Twitter followers following a one-breath statement. That makes the blog not just a valuable resource, but a primary resource because it is better than what existed previously.

In the New York Times on February 21st, there was an article on the decline of blogging due to Facebook and Twitter (Blogs Wane as the Young Drift to Sites Like Twitter). But the decline comes from those who had previously used blogs as online diaries for purely social purposes. There are other forms of social media that may be better for letting friends know of your vacation pictures and weight loss successes.

But for professionals, blogs rule the roost and will for some time to come. And that is because readers often come from outside the circle of pre-approved “friends” or followers who may want to see the information. Facebook and Twitter may be fine for letting others know that you have a new blog post, but for professionals who blog they are no substitute.

So the legal blogosphere is, I think, still wide open to newcomers and receptive to quality sites. Hochfelder found his due to appellate failure. Ironcially, it is that appellate failure that may be preventing cases from settling. As Hochfelder explains, in one of the many cases where he takes the appellate courts to task:

The point is, though, that we are owed some guidance from the appeals courts, some justification for their decisions involving millions of dollars and we are more and more often getting no explanation at all. In my humble opinion, that’s got to change if the appeals courts want the bar and the public, as well as the parties before it, to be guided by their opinions and to act on them in a manner (i.e., settling cases for reasonable amounts) that will reduce the number of lawsuits brought to trial and appealed.

So to those who may be contemplating a new blog, and worried that the field is filled and all the good subjects covered, I say that you couldn’t be more wrong. If you write and analyze well, there is more than enough room for you. And if you know your stuff you may find, as Hochfelder has, people regularly turning to you for advice.

Elsewhere: An October 2009 Q&A with Hochfelder

And, regarding the same NYT story: Blogging ain’t dying among lawyers (Real Lawyers Have Blogs)