August 7th, 2008

Suit: Hospital Loses Part of Man’s Skull (Updated)

Talk about weird. Down in Galveston, Texas a man had a piece of his skull removed due to brain swelling after a stroke. He was supposed to have it put back after the swelling went down. But, as you may have guessed from the headline here, the hospital lost that part of his skull. That’s not supposed to happen.

And it doesn’t seem to be a small piece of skull that got lost. This was an eight inch by four inch piece. That’s a lot of head bone, as one of my kids might say. Three times he was scheduled for surgery and three times it was cancelled before hospital officials finally admitted they couldn’t find the piece of skull that should have been sent to the bone bank. Instead, he had to have titanium mesh implanted.

Suit was filed yesterday against the University of Texas Medical Branch on behalf of 53-year-old Marvin Simmons. Interestingly, plaintiff’s counsel Tony Buzbee wrote in the suit, “This is not a case for medical malpractice.”

Why go out of your way to say it wasn’t malpractice but just plain vanilla negligence? My guess is the 2003 tort “reform” in Texas that provides protection for doctors and hospitals for any non-economic verdict over $250,000 for each of them, forcing the victims of malpractice to bear the burden of serious injuries themselves. So given a case that might be malpractice or might be negligence, depending on how the bone was lost, the attorney opts out of the malpractice choice in the suit.

Since I don’t practice in Texas, I can’t comment on that choice. Brooks Schuelke down in Austin would be better on that part. But if it happened in New York, I would plead the case both ways and decide after discovery how to proceed.

Update: Here is a copy of the Complaint: Simmons-v-UTMB.pdf

August 7th, 2008

Is SueEasy the Worst Lawyer Idea Ever? (Updated and Bumped to Add WhoCanISue.com)

This post originally appeared April 13, 2008. It has been bumped up due to another moronic entrant into the field of trolling for lawsuits. The new site, at the bottom of this post, is WhoCanISue.com. And it, like SueEasy discussed here, raises substantial ethical and litigation issues:
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When I first heard about SueEasy, I thought it was an April Fool’s joke. But it was October when it first appeared as a development concept (see 10/23/07 post:So How Did You Find Your Attorney? SueEasy!!!). Then I thought it must be a practical joke created by some tort “reformers” to highlight really bad advertising that sometimes takes place. Standard operating procedure is to use anecdotes to tar everyone else to win further protections and immunities for big business.

Sad to say, it has now gone live and appears to be yet another grotesque form of marketing, except that this one is actually dangerous and can help kill legitimate cases. (Note: SueEasy links provided by a TinyUrl redirect, so that this embarrassment to the profession doesn’t benefit from any PageRank by my linking to it.)

According to the site, “SueEasy is neither a law firm, nor is it a lawyer referral service.” That leaves only one thing, a marketing portal of some kind, presumably where lawyers buy space. These types of dumps are a dime a dozen on the web, and I get calls from them all the time. (See: The Ethics of Attorney Search Services.)

But unlike other attorney search services, this one has the potential for some serious damage in a unique way to both client and attorney in personal injury matters.

First, from the client perspective. One question you might expect at a deposition or trial will be this: How did you find your attorney? That doesn’t mean defense counsel can ask what was said, but they might certainly ask how you got to the lawyer you are using. Now can you imagine a jury finding out you used some company called Sue Easy? Perhaps a judge will allow the testimony, perhaps not, but I sure as hell wouldn’t want to be in a position to find out when the answer is SueEasy.

And since you may share documents or write something to this company that advertises it is not a law firm, that stuff you send may not be protected by the attorney-client privilege and may be discoverable (and possibly admissible at trial). Which is to say, that is a way for a defense lawyer to get the SueEasy name in front of a jury.

Here’s something else you might to consider: During jury selection one of the standard issues raised by defense lawyers is that anyone can bring a lawsuit. So if ever there was a way to reinforce that idea, contacting an advertising portal named SueEasy would do it. It’s like handing a big, fat gift to the defendants.

Second, from the attorneys perspective. You have not only shot a stomach churning hole in your own client’s case (and any fee you hope to recover), but you are also at the mercy of the advertising portal to act ethically. As I demonstrated in my other post on the ethics of these portals, this could be a real issue. For example, the site appears to be in violation of New York’s ethical rules because it fails to state that it is attorney advertising.

You might also note the site owners are too embarrassed to identify themselves, so a participating lawyer would be ceding their marketing to an anonymous individual or company. Imagine that, a lawyer putting his or her law license into the hands of anonymous people. Try explaining that one to the disciplinary committee one day.

If you agree to be marketed by that portal, the disciplinary committee of your state may well say that they are your agent, and you are responsible for the content of their site and the conduct of the employees. And they may not look kindly on the willful blindness defense that you will try. (“Really? The site did that? Oh, my, I’m shocked, just shocked to find out. I’ll have a talk with my people and maybe we’ll do something else. Oh, thank you so much for telling me, Madame Chair of the Disciplinary Committee.”)

So my advice to those seeking an attorney:

Ask around first. Your friends, relatives and neighbors are the best place to start.
Ask another attorney, even if outside the field you need. While you wouldn’t want a medical malpractice attorney to handle your real estate venture, and vice versa, there’s a pretty good chance that the attorney will at least know where to look for the right person.
After you get a few names from the above methods, you can check out their websites to see if they give clues as to what field(s) the attorney(s) claim to be proficient in, and interview the attorneys as to other cases in the field that they have handled.
An attorney search service such as Sue Easy is not just a bad idea, but a spectacularly bad idea, with this possibly be so dangerous as to harm your case or career. Any attorney who uses it for serious personal injury cases may well be committing malpractice.

This company is a bona fide twofer for defendants. They get both the horrible anti-plaintiff’s lawyer press and they get stuff they can actually use in the courtroom. I keep thinking this must be a joke, as no right-minded lawyer would ever affiliate themselves with this outfit. But I fear that is not the case.

Personal Injury Law Practical Advice– Line Up Your Money in Advance

Perhaps the most significant bit of advice I’ve given to other attorneys came up yesterday. It wasn’t so much about lawyering though, as it was about law office management. It popped up in the New York Times story of NYS Assembly Leader Sheldon Silver and his investment in Counsel Financial, a funding company for personal injury attorneys.

The advice stems from the fact that this company even exists. Funding companies are, as some lawyers learn the hard way, the last resort of accessing capital to stay afloat until cases taken on contingency get disposed of. Double digit interest is the norm.

And the problem exists because those that need the funds have been turned down by their bank for a traditional line of credit with much lower interest rates. Why turned down? Probably because they are now on hard times. The very reason they need the money is the very reason for the bank rejection. Banks don’t want to lend money to those in distress. They want to lend it to people who are flush; those that don’t need it.

So my advice is simple. If things are going well, get your line of credit. Now. Don’t wait until you need it. Because then you’ll be stuck borrowing from the lender of last resort.

August 6th, 2008

NYT: Loans From Assembly Leader Aid Firm That Finances Trial Lawyers (My Response)

I read the article in today’s New York Times, front page of Metro above the fold, about New York State Assembly Leader Sheldon Silver and his loans to a company that finances personal injury attorneys. I kept looking for the meat — that part where an impropriety occurs — but found nothing out of the ordinary. It appeared to be muckraking without the muck.

The article discusses his $50,000 in loans to Counsel Financial, one of several companies that make high risk, high interest loans to lawyers so that folks like me can fund our cases (Full disclosure: I’ve never used one of those companies). This is, after all, a business with a particularly brutal business model: The attorney funds cases for years on a contingency, any one of which can run to tens of thousands of dollars, with the prospect of getting paid back when the case concludes. If it is successful. Cash flow is a huge problem from the business perspective. Getting started in a personal injury practice is particularly difficult for a lawyer without means. A certain ruthlessness is needed for case selection, to make sure you don’t get stuck with bad cases. I’ve discussed this concept before: See, Medical Malpractice Economics.

The gist of the article is that Silver is not just the Assembly Speaker, but of counsel to Weitz & Luxenberg, a prominent New York firm whose principles are actively involved with Counsel Financial. But why would his investment in a firm that makes high risk loans be any more of a conflict of interest than his activities with the law firm itself?

Tort “reformers” such as Jim Copland at the Manhattan Institute (quoted in the article, commentary on it by Walter Olson at Point of Law), argue that his investment in the company encourages him to put the brakes on protectionist “reform” like damage caps on pain and suffering. After all, the bigger the business for the funding company, the more likely he is to have a profitable investment instead of a loss.

But that conflict already exists with his activities as a personal injury lawyer. In fact, that conflict exists with every single legislator regardless of whether they are lawyers or have businesses, whether they have interests are in Apple, GE, or some private concern. Our legislators are part-time, and are permitted to have other jobs. So conflicts are bound to exist, but since the one the Times highlights is no different than any other I find it odd to see it highlighted in such a fashion.

Now I am sensitive to conflicts of interest. In fact, conflicts were the source of my April Fool’s Day hoax on whether Supreme Court justices should recuse themselves from a fantasy baseball case due to their involvement in a fantasy league. There clearly must be rules to deal with conflicts in legislatures. But in this case, we seem to be missing some actual muck that is needed to give a story such prominent placement.

A final note. The article first identifies Silver, at the outset of the article, as a trial lawyer:

Since early last year, Mr. Silver, himself a trial lawyer, made two separate loans to the company, Counsel Financial.

But then later on, the author concedes that he really doesn’t know what the heck Silver does:

And it is not known what he actually does at Weitz & Luxenberg.

“The speaker voluntarily limits his legal work to serve only individuals and personal injury cases and does not represent lobbyists or clients who have business before the state,” said his spokesman, Mr. Weiller.

He would not say whether the speaker ever appears in court to represent clients or describe his legal work in more detail.

That’s just shoddy reporting.

Legal finance firms mentioned in NY Times today (Legal Broadcasting Network)
Is Public Service a Part-Time Job? (Gotham Gazette – The Wonkster)

August 4th, 2008

Lawyers, Laptops, Borders and Confidential Client Materials

The Department of Homeland Security is now authorizing itself to seize laptop computers at border crossings, and to hold them for as long as they want. Not to look for hidden bombs in the guts of the machines, but to look at the contents of the documents that it holds. For lawyers crossing a border with sensitive attorney-client documents, a potentially huge ethical problem has been created with such a handover.

Courtesy of Scott Greenfield, I learn that the Washington Post reported:

DHS officials said that the newly disclosed policies — which apply to anyone entering the country, including U.S. citizens — are reasonable and necessary to prevent terrorism. Officials said such procedures have long been in place but were disclosed last month because of public interest in the matter.

The policies state that officers may “detain” laptops “for a reasonable period of time” to “review and analyze information.” This may take place “absent individualized suspicion.”

Greenfield dealt with the issue from the standpoint of unregulated government power. Marc Randazza discusses the same news from the standpoint of moral outrage.

But this is a huge problem not just if you lose your laptop for a few weeks or months, but from the standpoint of actually handing over to the government confidential client information. That is, information that one is ethically prohibited from disclosing.

How does a lawyer with a laptop that contains his confidential files now cross a border if they are at risk of disclosing the confidences? This could be criminal investigations where the government itself is involved. It could be mergers and acquisitions. It could be anything.

And not just the laptop, but also the Blackberries and iPhones are at risk. If a laptop can be seized for an indefinite period, why not the handheld devices with all the messages from (or about) clients and pending matters? I wrote about this last year in iPhones, Attorneys and Ethics and the problem of turning over an iPhone (which has a non-removable batter) to some outside person for repair without the opportunity to delete the emails.

From an ethics standpoint, the lawyer crossing the border with client information has a whopper of a problem.