April 18th, 2008

Linkworthy

Blawg Review #155 is up, in poetic fashion, at the California Blog of Appeal. Poetic? Well, kinda, sorta;

Last week’s Personal Injury Round Up #57 came out this week, because it’s being done by an actual working lawyer, not an academic (Hey profs! Just kiddin’!). OK, maybe Brooks Schuelke spent part of the time at Disney World. But trust me, getting a round-up out every week like clockwork is no easy feat. And now Brooks is back today with Personal Injury Round-Up #58, chock full of links to stories, many of which I hadn’t seen;

There’s Health Wonk Review up at Health Beat which mixes medicine, law and policy;

Walter Olson notes at Overlawyered that Fen-Phen plaintiffs’ lawyers received $982/hour from the court. Given that the attorneys bore the risks and costs involved in a complex case for nine years, was that appropriate? You can find the judge’s math in calculating the award at The American Lawyer and reach your own conclusion;

Mary Whisner at Trial Ad Notes reports on the first study done on so-called health courts, with the author concluding, “that the modest benefits likely to be produced by the current health court proposal are more than matched by the risks of bias and overreaching that these courts would also present.

And Dick Cheney is a romantic. Who knew?

 

April 17th, 2008

Greenfield with Op-Ed in Newsday

Uber-blogger Scott Greenfield, of Simple Justice fame, has an op-ed in today’s Newsday on the scandal over attorneys representing “baby governments” such as school districts, out on Long Island.


Oversight needed on special-district lawyers

And if you want to comment on the piece, along with his suggestion of an inspector general to audit the work done by the attorneys for thise baby governments, Greenfield has: Open Thread on Newsday Op-Ed

 

April 16th, 2008

Modern Day Tort "Reform"

Once upon a time, tort “reform” consisted of asking legislatures for protections and immunities from suits by capping damage awards on the most badly injured of people, so that responsibility shifts from the person/company that did the deed onto the victims to fend for themselves.

That’s fading away. This is what the new tort “reform” looks like for drug makers:

First, ghostwrite “research” that goes out under the name of private doctors;

Second, use the research to get FDA approval for your product, or hide contrary information from the overworked, underfunded FDA;

Third, use FDA approval to scream for immunity from lawsuits under the doctrine of preemption.

Fourth: Find anecdotes of lawyers doing dumb things, like suing for $54M for a pair of pants, to support the theory that the problem is plaintiffs lawyers, and have the Big Business lobbying arms use it for all its worth to distract from the issues. Remember, blame the plaintiffs’ lawyers, no matter what you have done wrong.

Update 4/17/08: Why is this so effective? Because preemption is a concept understood by less than 1% of the general population. Our elections are about more important things, like what kind of lapel pin a candidate wears.

 

April 15th, 2008

New York Personal Injury Law Blog is ABA’s Blawg of the Week

Who’d a thunk it? It was just five months ago that I let loose against the ABA for leaving all personal injury blogs out of their ABAJournal Blawg 100 (see: Vote For Me In Blawg 100!! (Oh Wait, You Can’t)). And today I learn that my blog has popped up as their Blawg of the Week.

When the ABAJournal re-invented its web site last July, I welcomed their redesign with “terrific news feeds” and “a great new compendium of blawgs.” It was clear they had done their homework. (See: Welcome New and Improved ABA Journal)

This being the ABA though, I was a bit concerned that its focus would be waaay too much on BigLaw, and not enough on the small and solo firms that make up the vast majority of America’s law firms and that do much of the grunt work. I even wrote last summer:

The new ABAJournal also has a featured blawg each week. Let’s hope they don’t just focus on the big name A-listers from the ivory towers and appellate world, and present the occasional up-and-comers from the “Practical Blawgosphere” that are out there in the courthouses on a day-to-day basis.

So while I was disappointed that the entire personal injury bar, both plaintiffs and defendants, was left in the dust of its vaunted 100, it’s obviously refreshing to see that, perhaps, things can change.

And yes, I did make sure to copy the page, under the theory that this was just a screw-up or practical joke and it disappears tomorrow.

A final note for new visitors: If you’d like to see some of the greatest hits of the blog, click that link. And feel free to add it to your RSS feed. No extra charge.

 

April 15th, 2008

Judge Suing City for $1M Makes Headlines. Why?

I don’t really get the newspaper biz sometimes. I saw the front page headline in the Daily News as I passed through the train station yesterday, and read the story online here. New York Supreme Court Justice Jack Battaglia slips and falls on a floor in his courtroom because it was left wet and soapy by a janitor. Water on the floor is hard to see. He busts up his knee. It seems, in all respects, to be a run-of-the-mill lawsuit.

He then sues for a million dollars. Well, not really, but that is an archaic quirk in New York law. Litigants have actually been prohibited since 2003 from putting a number in the Complaint, as I’ve discussed previously. But because this is an action against the City of New York, a litigant is required to file a Notice of Claim within 90 days and is required to put a number in the claim. Dumb rule. How many people know how bad a knee injury will be within 90 days? Will they need surgery or will conservative treatment work? Three surgeries? Will there be pain and a limp forevermore? The answers are generally unknowable at the time a claim must be filed.

But you are required by law to put a number in the Notice. And so any lawyer with functioning neurons knows you are forced to assume, by law, a worst case scenario. Because if you state that fair and reasonable compensation would be $100,000, and it turns out much worse, then you might be, as we say in legalese, shit out of luck.

Last year the New York legislature took another step in abolishing this rule with regard to suits in the Court of Claims, where suits against the state are brought. (See: New York Cleans Up Claims Act). The ad damnum thus went to the scrap heap for cases against the State, as they had for everything else.

It’s time the legislature took the next step and dumped the rule for Notices of Claim against the City of New York. It serves no useful purpose. If the city wants to know what a litigant feels is the fair value of a matter, they can easily pick up the phone and call, or ask for it in writing, but requiring it by law is dumb, dumb, dumb.

As to the Daily News article, the writer calls it “the mother of all slip-and-fall cases.” Well, no, pretty routine actually. They call the judge “politically connected.” Do you know any that aren’t?

[Update: No suit has been brought, just a Notice of Claim filed. The purpose of which is to give the city prompt notice allow it to investigate the matter. So no, the janitor has not been sued, but has been partially identified. Which allows the city to investigate the claim. Which is kinda the whole idea.]

Should he not sit on city cases? Good question. Since there are plenty of judges in the courthouse, avoiding the appearance of impropriety is probably a good thing here.

But a much better question is: Why hasn’t there been any similar question about Wacthell Lipton representing the judiciary in the judge’s lawsuit for pay raises, and the ramifications of them appearing in front of judges whose interests they represent? Now that is a front page story. Yet I seem to be the only one to have covered it.