Category: Tort Law

6

The Cost of Litigation

dollars1a.jpgThe NY Times has an interesting article about defamation law involving a lawsuit by a judge against a newspaper for libel. The article noted some interesting facts about the nature and cost of defamation litigation:

The [Medial Law Resource Center] said judges win at trial at about the same rate — 60 percent — as anyone else who takes a news organization to court. But of those that are appealed involving public officials, the media win about 68 percent of the time.

The reason, experts said, is that appellate courts tend to be less susceptible to emotional arguments than juries and more attuned to the legal standard of malice as it applies to public officials, including judges.

Still, during the last several years, the center said, the media have appealed a smaller percentage of cases. In the 1980s, news organizations appealed about 87 percent of the verdicts against them; since 2000, they have appealed 76 percent.

“The media tend to win, but it can be expensive to litigate because you aren’t vindicated until appeal,” Mr. Dodell said. He said that 60 percent to 80 percent of the dollars his company paid out went to defense expenses, not awards.

I am one who believes that the media should be responsible when it defames people or invades their privacy, but the last paragraph in the excerpt above is quite alarming. One of the primary problems with our legal system is its extravagent cost, and the problem is only getting worse. The problem is caused in large part by lawyers, who command extremely high hourly rates. Litigating a case is increasingly a big production, almost like producing a small movie.

One possible solution is eliminating the so-called “American rule” for litigation costs, which holds generally that each side bears its own costs. In other countries, the loser pays. Proponents of a loser pays rule argue that it will weed out frivolous lawsuits brought solely to intimidate defendants to settle rather than expend massive litigation costs. Critics of shifting to loser pays argue that such a rule would seriously deter many legitimate tort cases, as large organizations can run up litigation costs and make the risk-to-reward likelihood in a case too unfavorable for anybody to litigate. In other words, a loser pays rule might result in too few worthy cases being brought. In contrast, the American rule doesn’t overly discourage litigation, and it forces the parties to try to resolve the case themselves. But the incentive is to settle quickly regardless of who’s in the right because of the enormous potential litigation costs. Changing the American rule to loser pays still will not address the problem that we have an extremely overpriced dispute resolution system.

The great value of our legal system is that it allows people the opportunity to present their side of the story and to be heard. But that takes time and often a lot of attorney labor, which is why it is so expensive. I believe that at some point, our legal system must evolve to address the problem of cost, as the litigation process itself is becoming worse than losing the case. Is there a viable solution?

8

The Next McDonald’s Coffee Case?

starbucks.jpgMaybe so:

[An Indiana couple] have filed a lawsuit against Starbucks, accusing a [local] store of serving scalding hot chocolate that seriously burned their little girl.

Michael and Alexis Brennan filed the suit Tuesday in Marion Superior Court on behalf of their daughter, Rachel. Rachel’s age is not included in the lawsuit, but it says she was in a child restraint seat in the back seat of the family car Nov. 2, 2004, when Alexis Brennan went to the Starbucks at 116th Street and I-69.

Brennan ordered a child’s hot chocolate with whipped cream and an adult hot chocolate without whipped cream at the drive-through. According to the lawsuit, Starbucks’ policy is to serve child drinks at lower temperature than adult drinks to avoid kids getting burned.

Brennan handed her daughter the child drink, and as she pulled away from the window, it spilled into Rachel’s lap.

The child was “screaming in pain,” and her mother pulled over, got Rachel out and removed her clothes to find the “skin on Rachel’s leg was falling off of her.” She suffered serious burns that required repeated medical attention and could require more medical attention, the lawsuit said. The parents are seeking unspecified damages.

Obviously, the kinds of cases that get turned (by certain interest groups) into urban legends about the tort system can’t be easily predicted. Some facts about this case – Starbuck’s policy of usually not serving hot drinks to children, the uncomfortable fact that the victim is a child and not an adult, and the alleged severe burns suffered – all might combine to make it less likely that norm entrepreneurs will seize upon this case as an example of the system run amok. But you never know – I did find the case on the Drudge Report, after all.

13

Online Blacklisting of Medical Malpractice Plaintiffs

stethoscope.jpgIn a disturbing development, websites are emerging to create blacklists of individuals who file medical malpractice claims. According to an article at Law.com:

In 2004, a group of Texas physicians launched DoctorsKnowUs.com. The site listed the names of plaintiffs, attorneys and expert witnesses in medical malpractice cases. That site did not make any distinction between cases that ended in plaintiff verdicts and those that ended in defense verdicts or settlements.

According to the New York Times, a North Texas man had trouble finding a physician for his 18-year old son after his name was posted on the site. He had filed a medical malpractice suit after his wife died from a missed brain tumor, and had won an undisclosed settlement.

DoctorsKnowUs.com was shut down four days after the Times article was published.

A new website to blacklist medical malpractice plaintiffs has emerged, called LitiPages.com. According to the Law.com article:

In the latest effort to enable doctors to shun patients who sue, an offshore company has launched an Internet site that lists the names of plaintiffs who have filed medical malpractice cases in Florida and their attorneys.

The site, LitiPages.com, encourages doctors to consider avoiding patients who are listed in the database, and it strongly encourages plaintiffs who have lost their cases at trial to turn around and sue their plaintiffs attorney. . . .

Unlike the Texas site, LitiPages.com plans to list only plaintiffs who filed cases that ended in a defense verdict, a settlement, or a plaintiff verdict on only one count while other counts were dismissed.

The overwhelming majority of med-mal cases that go to trial result in defense verdicts. A large percentage of claims never go to trial, and many of those result in settlements. Some experts say that it’s not possible to say that cases are “frivolous” just because they don’t result in a plaintiff verdict.

The article also discusses an interesting study about medical malpractice lawsuits:

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3

One of the Oddest Tort Cases

In what has to be one of the oddest tort cases I’ve ever heard of, the plaintiff won a $750,000 verdict, which was subsequently reduced to $400,000. To find out what his injury was, click here.

25

Oprah, Suicide, Free Speech, and Torts

I am embarrassed to admit that I sometimes tape and later watch “Oprah” on t.v. I do not know that I am huge fan of her show, but I certainly find some of the guests she has on the show interesting. Anyway, Oprah said something last week that baffled me, as a legal matter. My responsive e-mailed to her GC drew no reply, so I come humbly to the blogosphere to see what you all might offer.

On one of Oprah’s shows last week, she interviewed the parents and sister of a 19-ish year old Florida State college student – very bright, very creative – who killed herself. The young-woman fed her kittens and cleaned her apartment, and then went to a hotel, took some variation of cyanide, and died. Before she left this earth, she sent a timed-delayed e-mail to her parents, starting off with a sentence along the lines of “As you probably know by now, I have passed away….” (The e-mail explained that she had struggled with depression, and she basically found the struggle futile.) I believe she also sent an e-mail to a friend and to the police, so that they would know where to find her body.

Though the story is tragic in and of itself, an overwhelmingly sad aspect of the story is that this young woman found information on the internet that helped her execute her suicide plan and some might say encouraged her to or at least coached her regarding following through. Specifically, she had been frequenting a “pro-choice” suicide blog (or chat board or message board or some such – allow me to say “blog”). (The pro-choice phrase came from the show.) It seems that the young woman was able to glean technical information about how to kill herself or links to information on what, specifically, to do kill herself from that blog. Worse, I believe her parents or Oprah said that this young woman was posting regularly on the blog to update the blog readers and posters about her two-week countdown to killing herself. One person on the blog actually helped her craft her final e-mail to her parents. Dear God.

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Law of Conservation of Responsibility?

Back in 2004, a Florida judge angrily sent 11 defendants—mainly traffic offenders—to a jail cell for hours because they happened to be in the wrong courtroom. He’s now trying to keep his job, and claims in his defense that he had undiagnosed attention-deficit hyperactivity disorder (ADHD).

I think the case raises fascinating issues, less for the judge’s defense (I have no idea whether it’s accurate or exculpating), than for the cultural effect of such defenses. Are support groups for people with ADHD glad to see such defenses raised in court, since they add legal heft to diagnoses? Or are they worried that opportunistic defendants are going to discredit ADHD as one more tool to “get around” conventional notions of responsibility? I’d love to hear more on this type of debate, either in the criminal context (over the insanity defense) or in civil contexts. It’s a bit topical, given that the Supreme Court will hear arguments in Clark v. Arizona on April 19, to determine whether defendants have a constitutional right to an insanity defense.

All I’ll say for now is that this is not just a scientific question….

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11

Academic Blogging Scandal

bitchphd2.jpgA developing case about academic bloggers contains a chorus of major issues swirling in the blogosphere: the career consequences of blogging, moderating blog debates, hot-button political issues, and defamation.

The case involves Paul Deignan, an engineering PhD candidate who has a blog called Info Theory. Deignan got into a debate with the anonymous blogger Bitch Ph.D. over abortion. Deignan is pro-life; Bitch Ph.D. is pro-choice. They exchanged posts on their mutual blogs, and Deignan also placed a comment on one of Bitch Ph.D.’s posts.

As reported by Inside Higher Ed:

Then he posted a seemingly innocuous entry on the Bitch Ph.D. site: “Your linking talking points w/o analysis. Already I see several points that are exaggerated and misconstrued without even needing research…”

Feeling that this comment and subsequent ones from Deignan did not qualify as “substantive debate,” she soon deleted his comments and banned him from her site. Her policy states, “Comments are great; obnoxious comments get deleted. Deal.”

If this were all, the story would be just a typical tale of the blogosphere. But things got much uglier:

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8

Suing Wikipedia

Wikipedia.jpgWhat happens if there’s a Wikipedia article about you that’s unflattering? What if it is in error or revealing of your private life? Wikipedia, for those not familiar with it, is an online encyclopedia that is written and edited collectively by anybody who wants to participate.

Daniel Brandt, a blogger who maintains blogs called Google Watch and Wikipedia Watch complained to Wikipedia administrators asking them to delete an entry about him. What should one’s rights in this regard be?

Here’s what Brandt writes:

There is a problem with the structure of Wikipedia. The basic problem is that no one, neither the Trustees of Wikimedia Foundation, nor the volunteers who are connected with Wikipedia, consider themselves responsible for the content. . . .

At the same time that no one claims responsibility, there are two unique characteristics of Wikipedia that can be very damaging to a person, corporation, or group. The first is that anyone can edit an article, and there is no guarantee that any article you read has not been edited maliciously, and remains uncorrected in that state, at the precise time that you access that article.

The second unique characteristic is that Wikipedia articles, and in some cases even the free-for-all “talk” discussions behind the articles, rank very highly in the major search engines. This means that Wikipedia’s potential for inflicting damage is amplified by several orders of magnitude.

Brandt muses whether he ought to sue Wikipedia:

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1

“Potentially Safer” Cigarettes

images.jpeg This article from the Times (UK) is interesting. Apparently, BAT is planning to introduce a cigarette that, through various filtering technologies, may cut the risk of cancer and other smoking related diseases up to 90%

There are many problems with producing, marketing and buying “safer” cigarettes. Some were explored in one of my favorite books about American business, Barbarians at the Gate. As the article points out, the BAT folks are nervous. Although “privately” they refer to the cigarette as “risk free” or “low-risk cigarettes”, they are going to be sold as merely “potentially safer”.

But here is the kicker. BAT executives understand they can’t say, out loud, that consumers using their product as it was intended to be used will not get sick. Even safe cigarettes are bad for you, even if somewhat less so than competitive brands. But the “safe” inference is the inference that BAT really would like consumers to make. Without the inference, why would smokers buy a cigarette that likely will be more expensive, or have a harder “draw,” or might even taste terribly. So, BAT is “likely to focus its advertising on the new technology,” and hope that consumers will reach the appropriate conclusion themselves.

0

A jury is a jury is a jury is a jury… (or not)

jury.bmpDave’s post in defense of juries reminds me of one of the things that I dislike about our current debates over the jury system. Too often, the issue is presented in terms of a stark choice between judges as fact finders or juries as fact finders. The problem, of course, is that these choices do not exhaust our alternatives. For example, we might have — as they do in some civil law systems — a jury that deliberates in the presence of the judge, who acts as a kind of foreman. This might be a good way of getting at the problem of juries misunderstanding complex legal instructions.

One of the best criticisms of juries, I think, is that they are basically ignorant about some of the complex issues that they are called upon to decide. The problem, of course, is that judges are frequently just as ignorant. Karl Llewellyn once suggested a way of splitting the difference on this point. Borrowing from the lex mercatoria, he suggested that commercial cases be decided by merchant juries. The idea was that you would get expertise as well as community involvement. Ultimately, the Commission on Uniform State Laws shot down the idea, and hence it never made its way into the UCC. Still, it is a useful reminder that there are more juries in heaven and hell than are dreamt of it ATLA’s or ATRA’s philosophies.